169266 employers guide_to_nys_labor_laws_2014 (1)

Publisher:Rochester Business Alliance150 State Street, Suite 400Rochester, NY 14614-1308

Employer's Guide toNew York State Labor Laws

2014 Edition

Copyright 2014. Rochester Business Alliance and Nixon Peabody LLP.All rights reserved.

This copyrighted document is intended for the confidential use of RBAmembers only and may not be reproduced, shared, sold, stored in aretrieval system, or transmitted in whole or part, in any form or by anymeans, electronic, mechanical, photocopying, recording, or otherwise,without prior permission of RBA, 150 State Street, Suite 400, Rochester,NY 14614-1308, (585) 244-1800.

Editor:Nixon Peabody LLP1300 Clinton SquareRochester, NY 14604-1792

A note from the publisher . . .Rochester Business Alliance promotes sound employer/employee relations and encourages cooperationbetween business and the Rochester community. The Rochester Business Alliance's 1,600 members,which employ a sizable percentage of the area's work force in manufacturing, finance, health care,education, and business services, take advantage of a wide variety of services including:

• Custom Training and Seminars. Bottom-line practical programs on human resource topics,interpersonal relations, health, safety and environment, leadership and supervision.

• HR Helpline. Experienced professionals answer questions on human resource issues, respondto requests for sample documents, and assist members with research on various topics.

• Surveys and Research Reports. Results from local and national benchmarking surveys can beused to make sound compensation and benefits decisions. Customized wage and benefits sur-veys and other consulting services are also available to meet member needs such as affirmativeaction plans, employee opinion surveys, job description review, HR audits and employee hand-books.

• HR Networking. Regular meetings of specialized groups provide a forum for HR executives,managers and professionals to share concerns and discuss critical topics. In addition, FridayBusiness Briefings provide members an opportunity to network and listen to speakers on a widevariety of human resource and business issues.

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Recognizing the need for a concise single information source on New York State laws and regulations,we are particularly pleased to work with the law firm of Nixon Peabody LLP to produce this Guide. Itslargest office in Upstate New York is located at 1300 Clinton Square, Rochester, NY 14604; and itsother offices are located at:

Revised 2/14

Updates are published annually to keep this Guide current. Please direct inquiries, comments,and requests for additional copies of the Guide and yearly updates to the RBA Human ResourceServices department at (585) 244-1800.

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PREFACEAs society becomes increasingly more complex, so do its laws. This has been particularlytrue of our own State labor laws.

In the 18th century, the common law governing employer-employee relationships was primi-tive by today’s standards. An employer paid an employee a wage and that employee agreedto work for that wage. If either party decided to terminate the relationship, it could beterminated for any reason or for no reason at all.

With the beginning of this century, the law evolved to protect and benefit the employee.There are now requirements for minimum pay, health and safety, protections for unionorganizing, unemployment insurance, workers’ compensation, and disability benefits. Thereare also laws that protect workers against discrimination on the basis of race, creed, color,sex, natural origin, sexual orientation, military status, age, marital status, disability, andarrest/conviction.

Life is no longer simple, nor are the laws governing employer-employee relationships. ThisGuide has been designed to help employers understand and clarify, if possible, some of theconfusion surrounding State labor laws and to make employers more aware of the issuesinvolved in dealing with employees.

The Guide focuses more or less exclusively on State law. There are references made tofederal statutes where necessary to clarify a State issue. In some instances, however,State law may be modified or even preempted by federal law. Employers should recognizethis possibility and not assume that the State law is controlling in all cases.

Furthermore, the Guide does not purport to provide all of the answers. When faced with acomplicated legal problem, it is suggested that you seek expert legal counsel to assist you.Also, since labor law is constantly changing as a result of statutory changes and decisionsby the courts and administrative agencies, certain parts of the Guide may become outdatedwith time. Although efforts will be made to update the Guide to reflect recent develop-ments, consultation with your legal counsel is advised in order to ensure that no changeshave occurred since publication which could adversely affect your position on a particularmatter.

Editors:

Attorneys in the New York offices of the Labor and Employee Benefits Group of NIXONPEABODY LLP.

Stephanie N. MonastraEric R. PaleyVincent E. PolsinelliDaniel A. RizziSusan S. RobfogelKate Ulrich SaraceneTodd R. Shinaman

Marion BlankopfJo Ann ButlerStephanie M. CafferaJoseph A. CarelloJessica A. ChiclacosStacy J. CrosnickerTara E. DaubAlexander E. GallinChristopher G. Gegwich

Christian D. HanceyKimberly HardingMichael A. HausknechtJohn E. HigginsStephen J. JonesJ. Brian KoppSteve C. MindyTania MistrettaMark A. Molloy

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TABLE OF CONTENTS

CHAPTER 1 - PAYMENT OF WAGESI. Introduction............................................................................. 1-1

II. Coverage .................................................................................. 1-1A. Wages.................................................................................. 1-1B. Employer ............................................................................ 1-1C. Employee ............................................................................ 1-1

III. Statute .................................................................................... 1-2A. Frequency of Payments........................................................ 1-2B. Direct Deposit of Wages ....................................................... 1-3C. Deduction from Wages ......................................................... 1-3D. Differential in Pay Because of Sex ........................................ 1-6E. Gratuities ............................................................................ 1-6F. Kick Back of Wages ............................................................. 1-6G. Jury Duty ........................................................................... 1-7H. Procedures .......................................................................... 1-7 I. No Retaliation ..................................................................... 1-8

IV. Penalties/Other Relief MeasuresA. Civil Remedies ..................................................................... 1-8B. Criminal Penalties ............................................................... 1-9

V. Record-Keeping and Notices ................................................... 1-10A. New Hire Reports............................................................... 1-12

VI. Administering Agency ............................................................ 1-14

CHAPTER 2 - MINIMUM WAGE/OVERTIME PAYI. Introduction ............................................................................ 2-1

II. Coverage .................................................................................. 2-1A. Employers ........................................................................... 2-1B. All Employees ..................................................................... 2-1

III. Statute .................................................................................... 2-5A. Minimum Wage ................................................................... 2-5B. Sub-Minimum Wage ............................................................ 2-6C. Overtime Pay ....................................................................... 2-6D. Procedure ............................................................................ 2-7

IV. Penalties/Other Relief Measures .............................................. 2-7A. Criminal Penalties ............................................................... 2-7B. Civil Penalties and Remedies ............................................... 2-7

V. Record-Keeping........................................................................ 2-8

VI. Administering Agency .............................................................. 2-9

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PAGECHAPTER 3 - EMPLOYMENT OF MINORS

I. Introduction............................................................................. 3-1

II. Coverage .................................................................................. 3-1

III. Statute .................................................................................... 3-1A. Minimum Age Requirements ................................................ 3-1

1. Minors Under Age 14 ...................................................... 3-12. Minors Age 14 and 15 ..................................................... 3-13. Minors Age 16 and 17 ..................................................... 3-24. Posting of Hours ............................................................. 3-2

B. Employment Certificates and Permits .................................. 3-21. Types of Employment Certificates .................................... 3-22. Requirements for Obtaining Employment

Certificates and Permits .................................................. 3-3C. Prohibited Occupations ....................................................... 3-3D. Procedures .......................................................................... 3-4

IV. Penalties/Other Relief Measures .............................................. 3-4

V. Record-Keeping........................................................................ 3-4


CHAPTER 4 - HOURS OF WORKI. Introduction ............................................................................ 4-1

II. Coverage .................................................................................. 4-1

III. Statute .................................................................................... 4-1A. Legal Day’s Work ................................................................. 4-1B. One Day of Rest in Seven .................................................... 4-1C. Meal Periods........................................................................ 4-2D. Hours of Work for Minors .................................................... 4-2

1. Children Under Age 14 ................................................... 4-22. Children Age 14 and 15 .................................................. 4-33. Children Age 16 and 17 .................................................. 4-34. Posting of Hours ............................................................. 4-3

E. Procedures .......................................................................... 4-4

IV. Penalties/Other Relief Measures .............................................. 4-4

V. Record-Keeping........................................................................ 4-4


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PAGE CHAPTER 5 - HUMAN RIGHTS LAW

I. Introduction............................................................................. 5-1

II. Coverage .................................................................................. 5-1

III. Statute .................................................................................... 5-2A. Unlawful Discriminatory Practices ....................................... 5-2B. Equal Pay ........................................................................... 5-5C. Procedures .......................................................................... 5-5

1. Administrative Proceeding ............................................... 5-52. Judicial Proceeding ......................................................... 5-6

IV. Penalties/Other Relief Measures ............................................... 5-7A. Relief ................................................................................... 5-7B. Penalties ............................................................................. 5-7

V. Record-Keeping ........................................................................ 5-7

VI. Administering Agency............................................................... 5-8A. Division of Human Rights .................................................... 5-8B. Organization ....................................................................... 5-9

CHAPTER 6 - RIGHT-TO-KNOW LAWI. Introduction ............................................................................ 6-1

A. Employee Right-to-Know Law .............................................. 6-1B. Patient Access to Records of Health Assessments ................. 6-1C. Community Right-to-Know Law........................................... 6-1

II. Coverage of the New York RTK Law........................................... 6-1A. Preemption.......................................................................... 6-1

III. Statute .................................................................................... 6-2A. Public Health Law ............................................................... 6-2B. Labor Law ........................................................................... 6-2

1. Posting and Disclosure ................................................... 6-22. Employee Education....................................................... 6-23. Trade Secrets.................................................................. 6-34. Retaliation Prohibition.................................................... 6-3

IV. Penalties/Other Relief Measures .............................................. 6-3A. Civil Penalties ..................................................................... 6-3B. Criminal Penalties ............................................................... 6-3

V. Record-Keeping........................................................................ 6-3

VI. Administering Agency .............................................................. 6-4A. New York State Commissioner of Health .............................. 6-4B. State Department of Labor................................................... 6-4C. State Attorney General ........................................................ 6-4

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PAGE CHAPTER 7 - WHISTLEBLOWER LAW

I. Introduction ............................................................................ 7-1

II. Coverage .................................................................................. 7-1

III. Statute .................................................................................... 7-1A. Private Employee Rights ...................................................... 7-1B. Prerequisite to Employee Rights ........................................... 7-2C. Private Employer Rights....................................................... 7-2D. Statute of Limitations .......................................................... 7-3

IV. Penalties/Other Relief Measures ............................................... 7-3A. Private Action ...................................................................... 7-3B. Exclusivity .......................................................................... 7-3C. Preemption .......................................................................... 7-3

V. Record-Keeping ........................................................................ 7-3

VI. Administering Agency............................................................... 7-3

CHAPTER 8 - SAFETY AND HEALTH LAWI. Introduction ............................................................................ 8-1

II. Coverage .................................................................................. 8-1

III. Statute .................................................................................... 8-1A. Employer Duties ................................................................. 8-1B. Employee Examinations ...................................................... 8-2C. Prohibited Retaliation Against Employees ............................ 8-2

IV. Penalties/Other Relief Measures .............................................. 8-2A. General ............................................................................... 8-2B. Retaliation Against Employees............................................. 8-2

V. Record-Keeping........................................................................ 8-3


CHAPTER 9 - WORKERS’ COMPENSATION LAWI. Introduction ............................................................................ 9-1

II. Coverage .................................................................................. 9-1

III. Statute .................................................................................... 9-4A. Compensation ..................................................................... 9-4

1. Permanent Total Disability ............................................. 9-42. Permanent Partial Disability ........................................... 9-43. Temporary Total Disability .............................................. 9-44. Temporary Partial Disability ........................................... 9-4

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CHAPTER 9 - WORKERS’ COMPENSATION LAW (cont'd)B. Medical Expenses ................................................................ 9-5C. Death Benefits .................................................................... 9-6D. Minors ................................................................................ 9-7E. Other Benefits ..................................................................... 9-7F. Preferred Provider Organizations ......................................... 9-7G. Workplace Safety and Loss Prevention Program ................... 9-7H. No Discrimination .............................................................. 9-8 I. Procedures .......................................................................... 9-8

1. Notice of Injury ............................................................... 9-82. Filing of Claim ................................................................ 9-9

a. Uncontested Case. ...................................................... 9-9b. Contested Case ........................................................... 9-9

3. Burden of Proof ............................................................ 9-114. Statute of Limitations ................................................... 9-12

J. Confidentiality .................................................................... 9-12

IV. Penalties/Other Relief Measures ............................................ 9-12A. Attorney’s Fees, Costs........................................................ 9-12B. Interest ............................................................................. 9-13C. Penalties ........................................................................... 9-13D. Stop Work Order ............................................................... 9-14E. Suspension and Debarment .............................................. 9-15F. Reimbursements ............................................................... 9-15G. Judgment ......................................................................... 9-15H. Exclusive Remedy ............................................................. 9-15

V. Record-Keeping...................................................................... 9-16


CHAPTER 10 - DISABILITY BENEFITS LAWI. Introduction .......................................................................... 10-1

II. Coverage ................................................................................ 10-1A. Employment Relationship ................................................. 10-1B. Non-Work Related ............................................................. 10-1

III. Statute .................................................................................. 10-1A. Compensation ................................................................... 10-1B. Enriched Benefit Plans ...................................................... 10-2C. Other Benefits ................................................................... 10-2D. No Discrimination ............................................................. 10-2E. Securing Benefits .............................................................. 10-2F. Procedures ........................................................................ 10-3

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PAGECHAPTER 10 - DISABILITY BENEFITS LAW (cont'd)

IV. Penalties/Other Relief Measures ............................................. 10-4A. Attorney’s Fees .................................................................. 10-4B. Interest ............................................................................. 10-4C. Penalties ........................................................................... 10-4D. Reimbursement ................................................................. 10-4E. Misdemeanors ................................................................... 10-5

V. Record-Keeping...................................................................... 10-5


CHAPTER 11 - UNEMPLOYMENT INSURANCE LAWI. Introduction .......................................................................... 11-1

II. Coverage ................................................................................ 11-1A. Covered Employment ........................................................ 11-1B. Non-Covered Employment ................................................. 11-1

III. Statute .................................................................................. 11-2A. Threshold Dollar Liability .................................................. 11-2

1. Agricultural Employment ............................................. 11-22. Domestic/Household Employment ............................... 11-23. Not-For-Profit Organization .......................................... 11-24. Government Entities ..................................................... 11-3

B. Employer Responsibilities ................................................. 11-31. Registration Number .................................................... 11-32. Maintaining Records .................................................... 11-33. Quarterly Reports and Payments .................................. 11-3

a. Reporting Payments ................................................. 11-3b. Due Dates and Late Fees........................................... 11-3c. Special Situations Affecting the $8,500 Limit ............ 11-4

4. Furnishing Information ................................................ 11-4C. Tax Rate Calculation ......................................................... 11-4

1. Employer Accounts....................................................... 11-5a. Transferred Accounts ............................................... 11-5b. Joint Accounts ......................................................... 11-5c. Certain Transfers Which Seek to

Reduce Liability For Contributions ........................... 11-62. Individual Tax Rate Computation.................................. 11-63. Subsidiary Contributions ............................................. 11-64. Reemployment Service Fund Tax .................................. 11-75. Interest Assessment Surcharge ..................................... 11-76. Charging Benefits ......................................................... 11-7

D. Benefit Claims ................................................................... 11-7E. Procedures ...................................................................... 11-10

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PAGECHAPTER 11 - UNEMPLOYMENT INSURANCE LAW (cont'd)

IV. Penalties/Other Relief Measures ........................................... 11-10

V. Record-Keeping.................................................................... 11-11

VI. Administering Agency .......................................................... 11-12

CHAPTER 12 - STATE LABOR RELATIONS LAWSI. Introduction .......................................................................... 12-1

II. Coverage ................................................................................ 12-1

III. Statute .................................................................................. 12-3A. Unfair Labor Practices ....................................................... 12-3B. Representation Matters ..................................................... 12-4C. Procedures ........................................................................ 12-5

1. Unfair Labor Practices .................................................. 12-52. Representation Matters ................................................. 12-63. Grievances and Disputes in Nonprofit

Hospitals and Residential Care Centers......................... 12-74. Judicial Review............................................................. 12-7

D. State Funds and Union Neutrality ..................................... 12-7

IV. Penalties/Other Relief Measures ............................................ 12-8

V. Record-Keeping...................................................................... 12-8

VI. Administering Agency ............................................................ 12-9A. New York State Public Employment Relations Board .......... 12-9

CHAPTER 13 - EMPLOYMENT AT WILLI. Introduction .......................................................................... 13-1

II. Coverage ................................................................................ 13-1

III. General Rule .......................................................................... 13-1

IV. Erosion of Rule ...................................................................... 13-1A. Rule in Other States .......................................................... 13-1B. The Rule in New York ........................................................ 13-1

1. Contract Theory - Express Terms ofthe Employment Agreement .......................................... 13-1

2. Contract Theory - Implied Covenant of GoodFaith and Fair Dealing .................................................. 13-3

3. Tort Theory .................................................................. 13-6

V. Enforcement .......................................................................... 13-6

VI. Conclusion ............................................................................ 13-6

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PAGECHAPTER 14 - SMOKING/LEGAL ACTIVITIES

I. Introduction........................................................................... 14-1

II. Clean Indoor Air Act............................................................... 14-1A. Definitions ........................................................................ 14-1

1. Smoking....................................................................... 14-12. Employer...................................................................... 14-13. Place of Employment .................................................... 14-14. Food Service Establishment .......................................... 14-15. Bar ............................................................................... 14-16. Membership Association ............................................... 14-27. School Grounds ........................................................... 14-28. Retail Tobacco Business ............................................... 14-29. Enforcement Officer ...................................................... 14-2

B. Statute .............................................................................. 14-21. Prohibitions and Restrictions........................................ 14-22. Posting of Signs ............................................................ 14-33. Exceptions ................................................................... 14-34. Local Laws.................................................................... 14-4

C. Waivers ............................................................................. 14-4D. Enforcement and Penalties ................................................ 14-4

III. Legal Activities Law ................................................................ 14-4A. Definitions ........................................................................ 14-5

1. Political Activity ............................................................ 14-52. Recreational Activity ..................................................... 14-53. Work Hours .................................................................. 14-54. Consumable Products ................................................... 14-5

B. Statute .............................................................................. 14-51. Scope ........................................................................... 14-52. Exceptions ................................................................... 14-5

C. Judicial Interpretation....................................................... 14-6D. Penalties and Enforcement ................................................ 14-6

CHAPTER 15 - WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACTI. Introduction .......................................................................... 15-1

II. Coverage ................................................................................ 15-1

III. Statute .................................................................................. 15-1A. Triggering Events .............................................................. 15-1B. Notice Requirements.......................................................... 15-1C. Exceptions to Notice Requirements .................................... 15-2D. Aggregation of Employment Losses Within a 90-day Period 15-3

IV. Penalties/Other Relief Measures ............................................ 15-3

V. Administering Agency............................................................. 15-3

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CHAPTER 16 - ADDITIONAL EMPLOYER REQUIREMENTSI. Employment Of Security Guards ............................................ 16-1

A. Introduction ...................................................................... 16-1B Coverage ........................................................................... 16-1

1. Security Guard .............................................................. 16-12. Security Guard Company .............................................. 16-1

C. Statute ............................................................................. 16-11. Registration ................................................................... 16-12. Requirements for Applicants .......................................... 16-23. Duties of Employers ....................................................... 16-3 a. Limitations on Hiring ............................................... 16-3 b. Insurance ................................................................ 16-34. Advisory Council ............................................................ 16-3

D. Enforcement ...................................................................... 16-4E. Record-Keeping ................................................................. 16-4F. Administering Agency ........................................................ 16-4

II. Advisory Panel On HIV/HBV Infected Health Care Workers ..... 16-5

III. Lie Detectors (Psychological Stress Evaluators) ....................... 16-5A. Coverage ........................................................................... 16-5B. Prohibited Retaliation/Discrimination ............................... 16-6C. Penalties/Other Relief Measures ........................................ 16-6D. Record-Keeping ................................................................. 16-6E. Administering Agency ....................................................... 16-6

IV. Health Insurance Continuation and Conversion Rights .......... 16-6A. Introduction ...................................................................... 16-6B. Coverage ........................................................................... 16-6C. Statute .............................................................................. 16-6

1. Continuation Rights...................................................... 16-62. Conversion Rights ......................................................... 16-73. Employer Responsibilities ............................................. 16-8

D. Employer Penalties/Other Relief Measures ........................ 16-8

V. Access to Personnel Files Not Required by Law ....................... 16-8

VI. Leave for Bone Marrow Donation ............................................ 16-8

VII. Leave for Blood Donation ....................................................... 16-9

VIII. Employee Awareness of Domestic Violence -Development of Model Policy ................................................... 16-9

IX. Workplace Displays of the American Flag.............................. 16-10

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PAGECHAPTER 16 - ADDITIONAL EMPLOYER REQ. (cont'd)

X. Time Off To Vote................................................................... 16-10

XI. Professional Employer Act .................................................... 16-10

XII. Information Security Breach and Notification Act ................. 16-11A. Introduction .................................................................... 16-11B. Coverage ......................................................................... 16-12C. Notice of Breach .............................................................. 16-12D. Delayed Notice ................................................................ 16-12E. Enforcement ................................................................... 16-12F. Statute of Limitations ...................................................... 16-12G. Effective Date .................................................................. 16-12

XIII. Release of Employee Social Security Numbers andPersonal Information............................................................ 16-13

XIV. Prohibited Audio and Video Recordings ................................ 16-13

XV. Military Spouse Leave .......................................................... 16-13A. Introduction .................................................................... 16-13B. Coverage ......................................................................... 16-14C. Statute ............................................................................ 16-14D. Penalties/Other Relief Measures ...................................... 16-14

XVI. Nursing Mothers' Rights ...................................................... 16-14

XVII. Criminal Background Checks and Information ................... 16-14

XVIII. Protection of Crime Victims and Witnesses in CriminalProceedings ......................................................................... 16-15

XIX. New York State Posting Requirements .................................. 16-16

INDEX .......................................................................................... i-vii

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I. Introduction

Article Six of New York’s Labor Law setsforth an employer’s obligations regard-ing the method of paying wages, the fre-quency of such payments, and the de-ductions which may be made from wages.It also governs the payment of fringe ben-efits such as vacation and separation pay,and contributions made on behalf ofemployees to health and welfare funds.Finally, it provides civil and criminal rem-edies for violations of its provisions.

II. Coverage

A. Wages“Wages” includes earnings of an employeefor labor or services rendered regardlessof the basis upon which the earnings aredetermined, i.e., time, piece, commission,or other basis. "Wages" also includes ben-efits or wage supplements, e.g., reim-bursement for expenses, health benefits,welfare benefits, retirement benefits, va-cation pay, separation pay, or holiday pay.

B. Employer“Employer” means any person, corpora-tion, limited liability company, or asso-ciation employing any individual. Gov-ernmental agencies, however, are ex-cluded from the term "employer."

A “non-profitmaking organization” is alsoan employer. A “non-profitmaking orga-nization” is defined as a corporation,unincorporated association, communitychest, fund, or foundation organized andoperated exclusively for religious, chari-table, or educational purposes, no partof the net earnings of which inure to thebenefit of any private shareholder or in-dividual.

C. EmployeeAn “employee” is any person employedfor hire by an employer in any employ-ment.

A “manual worker” is a mechanic, work-ing person, or laborer.

A “railroad worker” is any person em-ployed by an employer who operates asteam, electric, or diesel surface railroador is engaged in the sleeping car busi-ness except persons employed in an ex-ecutive capacity.

A “commission salesperson” is any em-ployee whose principal activity is the sell-ing of any goods, services, real estate,securities, insurance, or any other thing,and whose earnings are based in wholeor in part on commissions. Excludedfrom the definition of "commission sales-person" is any employee whose principalactivity is of a supervisory, managerial,executive, or administrative nature. Dif-ferent rules govern the payment of com-missions to and contracts with sales rep-resentatives who are independent con-tractors. (N.Y. Labor Law § 191-a,et seq.)

“Clerical and other worker” includes allemployees who are not manual workers,railroad workers, or commission sales-persons, except persons employed in abona fide executive, administrative, orprofessional capacity whose earnings arein excess of $900 per week. (See Chap-ter 2 on Minimum Wage/Overtime Payfor the general definition of a bona fideexecutive, administrative, or professionalemployee.)

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CHAPTER 1 - PAYMENT OF WAGES

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III. Statute

A. Frequency of PaymentsEmployers are required to pay wages inaccordance with the following schedule:

1. Manual Workers - Weekly and notlater than seven calendar days afterthe end of the week in which the wagesare earned; manual workers employedby a non-profitmaking organizationmay be paid in accordance with theagreed upon terms of employment,but not less frequently than semi-monthly. An employer that has em-ployed an average of 1,000 or morepersons in the state over the last threeyears, or has employed an average of1,000 or more persons in the stateover the last year and has employedan average of 3,000 people for the lastthree years outside the state, may paymanual workers less frequently thanweekly, but at least semi-monthly,upon authorization of the Commis-sioner.

2. Railroad Workers - On or beforeThursday of each week, the wagesearned during the seven-day periodending on Tuesday of the precedingweek. If the employee of a railroadcorporation (excluding commuter rail-roads under the jurisdiction of themetropolitan transportation author-ity) makes a written request and noti-fies the corporation of his or her ad-dress, the company must mail everycheck for that employee’s wages viathe United States Postal Service, first-class mail.

3. Commission Salespersons - Wages,salary, drawing accounts, commis-sions, or all other monies earned orpayable shall be paid in accordancewith the agreed upon terms of employ-


ment but not less frequently thanonce each month and not later thanthe last day of the month followingthe month in which they are earned.If, however, the monthly or more fre-quent payments are substantial, thenadditional compensation earned, suchas extra or incentive earnings, bo-nuses, or special payments, may bepaid less frequently than once amonth, but no later than the time pro-vided in the employment agreementor compensation plan. Commissionsalespersons, upon written request,are entitled to receive a statement ofearnings paid or due and unpaid.Effective October 2007, the agreedupon terms of employment of a com-missioned salesperson must be placedin a written agreement signed by boththe employer and the salesperson.The written agreement must be kepton file by the employer for at least threeyears and made available to the Com-missioner upon request. The agree-ment must describe how wages, sal-ary, drawing account, commissionsand other monies payable will be cal-culated and how they will be paid ifthe employment relationship is ter-minated by either party. Where thereis a recoverable draw, the frequencyof reconciliation must be stated. Ifthe employer fails to produce the writ-ten agreement upon request of theCommissioner, the terms of employ-ment will be presumed to be as de-scribed by the commissioned salesper-son.

4. Clerical and Other Workers - In ac-cordance with the agreed upon termsof employment but not less frequentlythan semi-monthly on regular paydays designated in advance by theemployer. This provision does not ap-

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ply to employees employed in a bonafide executive, administrative, or pro-fessional capacity whose earnings arein excess of $900 per week. (SeeChapter 2, Minimum Wage/OvertimePay for the general definition of a bonafide executive, administrative or pro-fessional employee.)

Upon termination of employment, wagesshall be paid no later than the regularpay day for the pay period during whichthe termination occurred. If requestedby the employee, the final wage paymentshall be paid by mail.

B. Direct Deposit of WagesAdvance written consent of an employeeis required if the employer desires to usea direct deposit method of paying em-ployees. The above restriction does notapply to persons employed in a bona fideexecutive, administrative, or professionalcapacity (See Chapter 2, MinimumWage/Overtime Pay for the general defi-nition of a bona fide executive, adminis-trative, or professional employee) whoseearnings are in excess of $900 per weekor to employees working on a farm notconnected with a factory.

C. Deduction from WagesNew York has stringent requirements pro-hibiting deductions from employeewages. Effective November 6, 2012, theState expanded the list of permissible de-ductions and imposed new procedural re-quirements for making such deductions.

1. Statutory Requirements - No deduc-tions from wages may be made un-less they are:

1. Made in accordance with the pro-visions of a law or regulation is-sued by a governmental agency(such as provisions for the with-holding of income tax, FICA, etc.).

2. Expressly and voluntarily autho-rized in writing and are for theemployee’s benefit. Such authorizeddeductions are limited to payments for:- insurance premiums and prepaid

legal plans;- pension benefits;- health and welfare benefits;- contributions to a bona fide chari-

table organization;- purchases made at events spon-

sored by charitable organizationsaffiliated with the employer whereat least 20% of the profits of theevent go to the charity;

- United States bonds;- union dues or assessments;- discounted parking and mass tran-

sit passes and vouchers;- fitness center, health club, and

gym membership dues;- cafeteria and vending machine

purchases made at the employer’splace of business;

- purchases at gift shops operatedby the employer if the employer isa hospital, college, or university;

- pharmacy purchases at theemployer’s place of business;

- tuition, room, board, and fees forpre-school, nursery, and educa-tional institutions;

- day care, before-school, and after-school care expenses;

- housing provided at no more thanmarket rates by nonprofit hospitalsand their affiliates;

- “similar payments for the benefitof the employee.” Per current regu-lations, deductions in this last cat-egory cannot exceed, in the aggre-gate, 10% of the gross wages duethe employee in a payroll period.


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Additionally, an employer may make de-ductions from wages for:

- the recovery of an overpayment ofwagesdue to the employer’s math-ematical or clerical error;

- repayment of advances of salary orwages;

- deductions made in conjunctionwith an employer-sponsored pre-tax contribution plan approved bythe IRS or local taxing authority.

The express written authorization re-quired for each deduction must be kepton file on the employer’s premises dur-ing the employee’s employment and forsix years following termination of employ-ment. Before obtaining consent, the em-ployer must provide the employee withwritten notice of all the terms and condi-tions of the payment and/or its benefits,and the details of the manner in whichdeductions will be made. Whenever thereis a substantial change in any of theseterms, such as a change in the amountor manner of the deduction or a changein the benefits of the deduction, the em-ployer must notify the employee as soonas practicable, and before any increaseddeduction is implemented.

Employees may revoke their authoriza-tion in writing at any time, except for de-ductions required or authorized under acurrent collective bargaining agreement.The employer must cease a revoked wagededuction as soon as practicable, and inno event more than four pay periods oreight weeks after the revocation, which-ever is sooner.

Employers must set a maximum aggre-gate limit on the amount of deductionstaken from employee wages for (1) pur-chases made at events sponsored bycharitable organizations; (2) cafeteria and

vending machine purchases; (3) gift shoppurchases when the employer is a hos-pital, college, or university; (4) pharmacypurchases; and (5) other deductions simi-lar to these deductions that the New YorkState Department of Labor determines tobe permissible. The employee may alsoset a maximum aggregate limit up to themaximum established by the employer.Employers must not permit employeesto make any purchases that exceed thesemaximum limits. Employers must pro-vide employees with access to details onindividual expenditures within these cat-egories and a running total of these de-ductions to be taken from their next pay-check.

Employers must continue to comply withNew York law relating to assignment ofearnings (Article 3-A of the PersonalProperty Law) and prohibition of com-pany stores in addition to the provisionsof the wage deduction law.

Absent further legislative action, the ex-pansion to the wage deduction law thatbecame effective on November 6, 2012 willexpire on November 6, 2015.

Employers must, under most circum-stances, withhold up to ten percent ofan employee’s gross income in responseto a lawfully issued income execution. Alower limitation applies where theemployee’s weekly after-tax earnings areless than 30 times the federal minimumhourly wage, or where there are multipleorders for alimony, support, or mainte-nance for family members or formerspouses and those deductions equal orexceed 25 percent of the employee’s af-ter-tax earnings. Amounts deductiblefrom wages due to income executions arealso governed by federal law, which cur-rently has similar limitations.


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date by which the employee must con-test, and include the procedure by whichthe employee may contest the overpay-ment and/or terms of recovery, or pro-vide a reference to where the procedurecan be located.

The procedure for contesting repaymentmust allow the employee one week fromthe date of receipt to respond to theemployer’s notice (two days if the entireoverpayment may be recouped in one pay-ment); the employer must respond withinone week stating its reasons for disagree-ing or agreeing with the employee’s posi-tion; the employer must give the employeethe opportunity to meet within one weekto discuss any outstanding disagreements;and the employer must provide the em-ployee with a written final determinationwithin one week after the meeting. Dis-pute resolution provisions in collectivebargaining agreements which contain atleast as much protection to the employeeand which reference the regulations willbe deemed in compliance.

In all cases, the employer may only re-cover overpayments made in the eightweeks prior to its issuance of the notice ofintent to commence deductions, but theemployer may make deductions to recoveroverpayments for a period of six years fromthe original overpayment.

The Department regulations also addressprocedures and notice requirements forrepayment of advances of salary or wagesthrough wage deductions. Any provisionof money to an employee which is accom-panied by interest, fees, or any additionalrepayment amount is not an advance andmay not be repaid by wage deduction.Once an advance is given, no further ad-vances may be given or deducted until thefirst advance is paid in full.


Employers may not make charges againstwages or require an employee to makeany payment by a separate transactionunless those charges or payments arepermitted as a deduction from wages orare permitted or required under a cur-rent collective bargaining agreement.

2. Regulatory Requirements For Recoup-ing Wage Overpayments and Advances

In 2013, the Department of Labor issueddetailed regulations which contain pro-cedures and notice requirements for re-couping wage overpayments. Overpay-ments due to the employer’s mathemati-cal or clerical error may be recovered bywage deductions no more frequently thanonce per wage payment. If the overpay-ment is less than or equal to theemployee’s net wages in the next wagepayment, the entire amount of the over-payment may be recouped in that pay-ment. If the overpayment exceeds theemployee’s net wages in the immediatelysubsequent wage payment, the recoverymay not exceed 12.5% of gross wages andmay not reduce the employee’s effectivehourly wage below the statutory minimumwage.

The employer must provide the employeewith written notice of its intent to com-mence the deductions. The notice mustcontain the amount overpaid in total andper pay period, the total amount to bededucted and the date each deductionshall occur followed by the amount of eachdeduction. The notice must be given atleast three days prior to the deduction ifthe entire amount will be reclaimed in onewage payment; in all other cases, the no-tice must be given at least three weeksbefore deductions commence. The noticemust also inform the employee that he orshe may contest the overpayment, of the

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The employer and employee must agreeto the timing and duration of the repay-ment deduction in writing before the ad-vance is given. The employee must pro-vide written authorization for thededuction(s) to repay the advance beforethe advance is given. The employee mayrevoke the authorization only if the em-ployer has not yet provided the advance.An employer may recover an advance bywage deduction no more than once perwage payment.

The employee’s authorization must con-tain the amount to be advanced, theamount to be deducted to repay the ad-vance in total and per wage payment andthe date(s) when each deduction will betaken. It must also include notice to theemployee that he or she may contest anydeduction that is not in accordance withthe terms of the written advance autho-rization. This procedure must permit theemployee to provide written objections tothe deduction(s). The employer must re-ply in writing as soon as practical stat-ing its reasons for disagreeing or agree-ing with the employee’s position. Theemployer must cease deductions until itsreply has been given and any appropri-ate adjustments made.

Dispute resolution provisions in collec-tive bargaining agreements which con-tain at least as much protection to theemployee and which reference the regu-lations will be deemed in compliance.

D. Differential in Pay Because of SexEmployers may not differentiate on thebasis of sex between rates of pay of em-ployees in the same establishment whoare performing work requiring equal skill,effort, and responsibility and which isperformed under similar working condi-tions unless payment is made pursuant

to a differential based on a seniority sys-tem, a merit system, a system which mea-sures earnings by quantity or quality ofproduction, or any other factor other thansex.

E. GratuitiesNo employer or his agent or an officer oragent of any corporation or any otherperson shall demand or accept, directlyor indirectly, any part of the gratuitiesreceived by an employee nor may theyretain any part of a gratuity or of anycharge which is purported to be a gratu-ity for an employee. Excluded from thisprovision are the checking of hats, coats,or other apparel and practices in con-nection with banquets and other specialfunctions where a fixed percentage of thepatron’s bill is added for gratuities, whichare distributed to employees, and thesharing of tips by a server with a similaremployee. This provision has no effectupon the allowances for gratuities whichan employer may apply to its minimumwage obligations.

F. Kick Back of WagesWhenever a worker is engaged to performlabor at an agreed wage rate (whether theagreed wage rate is stated orally, in writ-ing, contained in a collective bargainingagreement or a matter of entitlement pur-suant to New York’s prevailing wage law),it is unlawful for any person, either forhimself or herself or on behalf of any otherperson, to request, demand, or receive,either before or after such worker is en-gaged, a return donation or contributionof any part or all of the worker’s wages,salary, or other things of value upon thestatement, representation, or understand-ing that failure to comply with the re-quest or demand will prevent such workerfrom procuring or retaining employment.Any person who directly or indirectly aids,


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ployers and employees relating to thepayment of wages.2. Take assignments of claim forwages from employees or third par-ties in trust for such employees or forthe benefit of various funds for suchemployees. Upon taking such assign-ments, the Commissioner may sue theemployer on wage claims thus as-signed.3. Institute criminal proceedings al-leging violations of the provisions ofArticle Six. The Commissioner mayrequire any employer who has beenconvicted of a violation of any provi-sion of Article Six, or who fails to sat-isfy any order to comply for a periodof 10 days after the time to appealtherefrom has expired and who hasnot appealed, to (a) provide an ac-counting of assets and (b) deposit abond in any sum which the Commis-sioner deems sufficient and adequate.The bond shall be payable to the Com-missioner and shall be conditionedupon the employer paying his employ-ees in accordance with the provisionsof Article Six for a definite future pe-riod not exceeding two years and shallbe further conditioned upon the pay-ment by the employer of any judgmentor order to comply which may be re-covered against such employer pur-suant to the provisions of Article Six.If within 10 days after the demand forsuch a bond is made the employer failsto deposit the bond, the Commissionermay bring an action in State SupremeCourt to compel the employer to fur-nish the bond or to cease doing busi-ness until the employer has done so.If such an action is brought, the em-ployer has the burden of proving thatthe bond is unnecessary or that theamount demanded is excessive. If theCourt finds that there is just cause

requests, or authorizes any other personto violate this anti-kick back provision isalso guilty of violating the provision. Aviolation of the anti-kick back provisionof the Labor Law is a misdemeanor. TheCommissioner will direct repayment ofwages plus interest to the employee andwill order payment of a civil fine up to$5,000. Where appropriate, the Commis-sioner may also direct reinstatement,back wages, and restoration of seniority.Excluded from the anti-kick back provi-sion are agents or representatives of aduly-constituted labor organization whoare collecting dues or assessments of suchorganizations.

G. Jury DutyAs a general rule, employers may with-hold the wages of employees on jury dutyduring the time of such service. An em-ployer of more than ten employees, how-ever, may not withhold the first $40 ofan employee’s daily wages during thefirst three days of jury service, providedthe employee is scheduled to work thosedays. Employers may not discharge orpenalize an employee on account of ab-sence from employment by reason of juryservice under the judiciary law if the em-ployee notifies the employer before suchabsence. These requirements are im-posed by New York’s Judiciary Law andapply only to jury duty in the New YorkState Unified Court System.

H. ProceduresAlthough employees have a private causeof action against employers to collectwages due them, the primary authorityfor enforcing the provisions of Article Sixof the Labor Law are vested in the Com-missioner of Labor. Under the statute,the Commissioner may:

1. Investigate and attempt to equita-bly adjust controversies between em-

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for requiring the bond, the Court mayenjoin the employer from doing busi-ness until the requirement of filing abond is met.4. Issue rules and regulations whichthe Commissioner deems necessaryfor carrying out the purposes of Ar-ticle Six.

I. No RetaliationEmployers, their officers and agents,and/or any other persons are prohibitedfrom discharging, threatening, penaliz-ing, or in any other manner discriminat-ing or retaliating against an employee (1)because the employee has made a com-plaint to his or her employer, the Com-missioner, the Attorney General, or anyother person asserting that the employerhas engaged in conduct that the em-ployee, reasonably and in good faith, be-lieves violates the Labor Law or any or-der issued by the Commissioner; (2) be-cause the employer or person believes theemployee made such a complaint; (3) be-cause the employee brought, caused tobe brought, or is about to bring a pro-ceeding under the Labor Law; (4) becausethe employee provided information to theCommissioner or attorney general; (5)because the employee testified or is aboutto testify in an investigation or proceed-ing under the Labor Law; (6) because theemployee has otherwise exercised rightsprotected under the Labor Law; or (7)because the employer has received anadverse determination from the Commis-sioner involving the employee.

IV. Penalties/Other ReliefMeasures

The Wage Theft Prevention Act, passedin 2010, significantly expanded the rem-edies available under the Labor Law.


These expanded remedies took effect onApril 9, 2011.

A. Civil RemediesIf the Commissioner of Labor determinesthat an employer has violated a provi-sion of Article Six, the Commissioner willdirect payment of wages, benefits, orsupplements due, plus liquidated dam-ages in the amount of 100 percent of un-paid wages, as well as interest. If theemployer previously has been found inviolation of Article Six or certain otherwage payment laws or regulations, or hascommitted a willful or egregious violation,the Commissioner also will assess a civilpenalty in an amount not to exceeddouble the total amount of wages, ben-efits, or supplements found to be due.In its order to comply, the Commissionermay also include an automatic 15 per-cent additional amount of damages tocome due upon the expiration of 90 daysfrom the date its order to comply becomesfinal.

Further, where an employer is found inviolation of Article Six, the Commissionerhas the power to post a notice summa-rizing the violations in an area visible toemployees for a period not to exceed oneyear. If the employer’s violation was will-ful, then the Commissioner has the powerto post such a notice in an area visible tothe general public for a period not to ex-ceed 90 days. Any person who removes,alters, defaces, or otherwise interfereswith the posted notice is guilty of a mis-demeanor.

If the violation does not involve failure topay wages, benefits, or supplements due,the Commissioner will assess a civil pen-alty of up to $1,000 for the first viola-tion, $2,000 for a second violation, and$3,000 for third or subsequent violations.

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Additionally, any employer who fails topay the wages of his employees or whodifferentiates in rate of pay because ofsex as provided in Article Six shall forfeitto the State $500 for each such failure.The Commissioner of Labor may bring acivil action to enforce this provision.

An employee or the Commissioner maybring a Court action upon a wage claim.If the employee prevails, the Court willaward the employee the full amount oflost wages, pre-judgment interest, andreasonable attorneys’ fees. The Court alsowill award an additional amount as liq-uidated damages equal to 100 percent ofthe total amount of wages due, unlessthe employer proves that it had a goodfaith basis to believe that its underpay-ment of wages was in compliance withthe law. In addition to awarding ordi-nary costs, the Court also may award theemployee up to $50 for additional ex-penses which may be taxed as costs.

Any monetary judgment or court orderthat remains unpaid for 90 days after thetime to appeal has expired will automati-cally increase by 15 percent.

The Commissioner may bring an admin-istrative action against an employer tocollect wages due. In addition to anyother remedies and penalties availableunder Article Six of the Labor Law, theCommissioner will assess an additionalamount as liquidated damages up to 100percent of the total amount of wages due,unless the employer proves that it had agood faith basis to believe that its un-derpayment of wages was in compliancewith the law.

The remedies provided by Article Six maybe enforced simultaneously or consecu-tively. Any action to recover upon a li-


ability imposed by Article Six generallymust be commenced within six years.

If an employer violates the anti-retalia-tion provision of the Labor Law, the Com-missioner may, after investigation, assessa civil penalty of no less than $1,000 andno more than $10,000, and order thatthe employer pay lost compensation. TheCommissioner may also order all appro-priate relief including enjoining the im-permissible conduct, ordering paymentof liquidated damages by the person orentity in violation of up to a maximum of$10,000 on behalf of every aggrieved em-ployee, and/or ordering reinstatement ofthe employee to his or her former posi-tion or an equivalent position or paymentof front pay in lieu of reinstatement.An employee may bring a court actionagainst any employer or person who vio-lates the anti-retaliation provision of theLabor Law. The Court can order all ap-propriate relief including restraining theviolation (if it is within two years of theviolation), reinstatement with restorationof seniority or payment of front pay inlieu of reinstatement, payment of lostcompensation, damages, costs, andattorney’s fees. The court shall alsoaward liquidated damages in an amountnot more than $10,000 to every aggrievedemployee. The employee must serve no-tice upon the attorney general at or be-fore commencement of an action underthis provision.

B. Criminal PenaltiesEvery employer who does not pay thewages of all of its employees in accor-dance with the provisions of Article Six,and any officer or agent of any corpora-tion who knowingly permits the corpo-ration to commit such a violation, isguilty of a misdemeanor for the first of-fense. Upon conviction, the employer, of-

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ficer, or agent shall be fined not less than$500 or more than $20,000 or impris-oned for not more than one year. In theevent any second or subsequent offenseoccurs within six years of the date of con-viction for a prior offense, the employer,officer, and/or agent is guilty of a felony,and upon conviction shall be fined notless than $500 or more than $20,000and/or imprisoned for not more than oneyear plus one day for each offense.

Every employer who does not complywith the requirements for maintainingand preserving payroll records, and anyofficer or agent of the employer whoknowingly permits the employer to vio-late that provision, is guilty of a misde-meanor. Upon conviction, the employer,officer, and/or agent shall be fined notless than $500 or more than $5,000 orimprisoned for not more than one year.In the event any second or subsequentoffense occurs within six years of the dateof conviction for a prior offense, the em-ployer, officer, and/or agent is guilty ofa felony, and upon conviction, shall befined not less than $500 or more than$20,000 and/or imprisoned for notmore than one year plus one day foreach offense.

Any employer who is a party to an agree-ment to pay or provide benefits or wagesupplements to employees or to a thirdparty or fund for the benefit of employ-ees, who fails, neglects, or refuses to paythe amount or amounts necessary to pro-vide such benefits or furnish suchsupplements, within 30 days after suchpayments are required to be made, isguilty of a misdemeanor, and upon con-viction, shall be fined not less than $100or more than $10,000, or imprisoned fornot more than one year, or punished byboth such fine and imprisonment for

each offense. If the employer is a corpo-ration, the president, secretary, treasurer,or officers exercising corresponding func-tions shall each be guilty of a misde-meanor. These penalties are not appli-cable where the employee is a bona fideexecutive, administrative, or professionalemployee who earns in excess of $900per week.

Any employer, agent, officer, or any otherperson who violates the anti-retaliationprovisions of the Labor Law is guilty of aclass B misdemeanor.

An employer who is required, but fails,to pay the first $40 of a juror’s daily wagesduring the first three days of jury serviceis guilty of criminal contempt of courtpunishable by a fine of up to $1,000 or30 days in jail, or both.

V. Record-Keeping and Notices

The Labor Law imposes several noticeand record-keeping obligations upon em-ployers. The Wage Theft Prevention Act,passed in 2010, significantly expandedemployers’ record-keeping requirementsunder the Labor Law. These expandedrequirements became effective on April9, 2011. With respect to wages and ben-efit policies, every employer must:

1. Give written notice to its employ-ees at the time of hiring, and on orbefore February 1st of each subse-quent year of employment, of the fol-lowing: the rate(s) of pay and the ba-sis for the rate(s) (whether paid by thehour, shift, day, week, salary, piece,commission, or other); allowancesclaimed as part of the minimum wage;the regular pay day designated by theemployer; the name of the employer,including any d/b/a names; the


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physical address of the employer’smain office or principal place of busi-ness and a mailing address if differ-ent; the employer’s telephone num-ber; and such other information asthe Commissioner may require. Forall employees who are not exemptfrom overtime compensation, the no-tice must also state the employee’sregular hourly rate(s) and overtimerate(s) of pay. The notice must be pro-vided both in English and in theemployee’s primary language. TheCommissioner will provide templatesthat may be used for this purpose.

Each time the employer provides no-tice, the employer must obtain a writ-ten acknowledgement from the em-ployee, in English and in theemployee’s primary language, of re-ceipt of the notice, which must be re-tained for six years.

An employee who does not receive therequired notice within 10 businessdays of hire may bring a court actionagainst the employer to recover $50per each work week not notified, upto a maximum of $2,500, plus costsand reasonable attorneys fees. TheCommissioner may also bring legalaction to collect such a claim.

2. Notify its employees in writing ofany changes to the information con-tained in the above notice, at leastseven calendar days prior to the timeof the change, unless the changes arereflected in the wage statement refer-enced below in subsection 3.

3. Furnish each employee with a wagestatement each time an employee ispaid, listing the following: dates ofwork covered by the wage payment;


name of the employee; name of theemployer; address and phone num-ber of the employer; rate(s) of pay andthe basis for the rate(s) (whether paidby the hour, shift, day, week, salary,piece, commission, or other); grosswages; deductions; allowances claimedas part of the minimum wage; and netwages. For all employees who are notexempt from overtime compensation,the statement also must include theemployee’s regular hourly rate(s) ofpay, overtime rate(s) of pay, the num-ber of regular hours worked, and thenumber of overtime hours worked.For all employees paid a piece rate,the statement must include the ap-plicable piece rate(s) and number ofpieces completed at each piece rate.

An employee who does not receive arequired wage statement may bring acourt action against the employer torecover $100 per each work week theviolation(s) occurred or continue tooccur, up to a maximum of $2,500,plus costs and reasonable attorneysfees. The Commissioner may alsobring legal action to collect such aclaim. Upon the request of an em-ployee, an employer must furnish awritten explanation of how the wageswere computed.

4. Establish, maintain, and preservefor not less than six years contempo-raneous, true, and accurate payrollrecords showing, for each weekworked, the following: hours worked,the rate(s) of pay and the basis for therate(s) (whether paid by the hour,shift, day, week, salary, piece, com-mission, or other); gross wages; de-ductions; allowances claimed as partof the minimum wage; and net wagesfor each employee, as well as any other

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information that the Commissionermay require. For all employees whoare not exempt from overtime compen-sation, the payroll records also mustinclude the employee’s regular hourlyrate(s) of pay, overtime rate(s) of pay,the number of regular hours worked,and the number of overtime hoursworked. For all employees paid a piecerate, the statement must include theapplicable piece rate(s) and numberof pieces completed at each piece rate.

5. Notify its employees, in writing orby publicly posting, the employer’spolicy on sick leave, vacation, personalleave, holiday, and hours.

With respect to terminated employees, ev-ery employer must:

1. Notify employees terminated fromemployment, in writing, of the exactdate of termination and exact date ofcancellation of employee benefits con-nected with the termination. Noticeof termination must be provided withinfive working days after the date of ter-mination. It should be noted that therequirement that employers notify em-ployees of the cancellation of benefitsmay be preempted by ERISA with re-spect to benefit plans covered byERISA.

Every railroad corporation must furnisheach employee with a statement with ev-ery payment of wages listing accrued to-tal earnings and taxes to date, and fur-ther, furnish each employee at the sametime with a separate listing of his dailywages and how they are computed.

Every employer engaged in the sale orservice of food or beverages must con-spicuously post a copy of the law relat-ing to permissible deductions from wagesand tips.

A. New Hire ReportsThe state tax law requires all employersto submit reports to the "State Directoryof New Hires" established by the Depart-ment of Taxation and Finance identify-ing any employee who has been newlyhired or re-hired to work in New YorkState. This law is intended to facilitatethe calculation of child support obliga-tions by state government support col-lection units and to aid in administeringthe law's child support enforcement pro-gram. New York State has coordinatedits program to meet the reporting require-ments found in the federal Personal Re-sponsibility and Work Opportunity Rec-onciliation Act of 1996.

Each new hire/re-hire report to the Statemust consist of the employee's W-4 formor an equivalent form containing the fol-lowing required information: theemployee's name, address, and social se-curity number, and the employer's name,address, and IRS identification number.Employers also must report if dependenthealth insurance benefits are availableand the date the employee qualifies forthe benefits. If the new hire/re-hire re-port is submitted on a W-4 form, an ad-ditional form must be submitted by mail,magnetically, or electronically, to reportthe required information on dependenthealth insurance benefits. The reportmust be submitted within 20 calendardays of the hiring or re-hiring. Reportsmust be sent by first class mail or pri-vate delivery service to New York StateDepartment of Taxation and Finance, NewHire Notification, P.O. Box 15119, Albany,New York 12212-5119 or by fax to (518)320-1080. There also is an option to sub-mit the report via the internet atwww.nynewhire.com.

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Employers have the option to transmitreports electronically or on computer diskrather than by mail or fax. Employerswho do so must make two monthly sub-missions (if needed) not less than 12days, nor more than 16 days, apart.Those interested in this option shouldcontact Employer Outreach at (518) 320-1079 for more information. New Yorkemployers with employees both in NewYork and in another state who use theelectronic/magnetic transmission optionmay submit all new hire/re-hire reportsto either New York or the other state, butmust inform the federal Secretary ofHealth and Human Services in writingof which state the employer selects forreporting. Notification must be sent to:Department of Health & Human Services,Multistate Employer Registration, Officeof Child Support Enforcement, Box 509,Randallstown, MD 21133.

Failure to timely submit proper reportswill result in a penalty of $20 for eachemployee not reported, not to exceed$10,000 per year, unless the employercan show that the failure to report wasdue to reasonable cause and not willfulneglect. However, if the failure to reportis a result of a conspiracy between theemployer and the employee to notsupply a proper report, the penalty willbe $450 for each such employee.

Employers with questions about newhire/re-hire reporting requirementsmay call New York State's CorporationTax Information Center at (518) 485-6027 or write to the New York Depart-ment of Taxation and Finance, Tax-payer Assistance Bureau, W. A.Harriman Campus, Albany, New York12227. Information is also availableonline at www.tax.ny.gov/bus/wt/newhire.htm.


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ALBANY Building 12, Room 185 A (518) 457-2730State Office Building Campus12240

BINGHAMTON 44 Hawley Street, Room 909 (607) 721-801413901-4408

BUFFALO 65 Court Street, Room 202 (716) 847-714114202

GARDEN CITY 400 Oak Street, Suite 101 (516) 794-819511530

NEW YORK 75 Varick Street (212) 775-388010013

ROCHESTER 109 South Union Street, Room 318 (585) 258-455014607

SYRACUSE 333 East Washington Street (315) 428-4057Room 121, 13202

WHITE PLAINS 120 Bloomingdale Road, 10605 (914) 997-9521

VI. Administering Agency

Article Six of the New York Labor Law isadministered by the New York State De-partment of Labor, Division of LaborStandards. For information or assistance,contact any of the Department of Labor’soffices listed below:


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CHAPTER 2 - MINIMUM WAGE/OVERTIME PAY

I. Introduction

The New York Minimum Wage Act (“Act”)requires that covered employees receivea specified minimum wage. The Act re-quires overtime pay when covered employ-ees work more than 40 hours in a week.Employers are also required to keeprecords of their employees’ hours andwages. Finally, the Act provides amechanism for its enforcement and pen-alties for its violation.

II. Coverage

A. EmployersThe Act applies to all individuals andentities acting as employers in New York.Non-profit institutions, however, mayobtain limited relief from some of the Act’srequirements. Most employers in NewYork will also be subject to the federalFair Labor Standards Act, which alsoimposes minimum wage, overtime payand record-keeping obligations, on em-ployers.

In addition, all employers must satisfyadditional obligations imposed by WageOrders promulgated pursuant to theAct according to their industry: Miscel-laneous Industries and Occupations;Hospitality; and Building Service Indus-try. These obligations vary, but includesuch requirements as call-in pay, split-shift payments, uniform allowances,guaranteed minimum weekly wages andpart-time hourly wage rates.

Employers with employees working on“public works” projects are also subjectto the New York Prevailing Wage Act. Thislaw requires, among other things, thatemployees receive no less than the wages

and benefits prevailing in the surround-ing area and that they receive overtimepay for all hours of work in excess of eightin a day. (Employers contracting withthe federal government are subject tosimilar obligations under several federallaws.)

B. All EmployeesThe Act covers most employees. It doesnot, however, cover volunteers, appren-tices and some students and workers innon-profit organizations.

The Act also contains exemptions fromthe minimum wage and overtime provi-sions for bona fide executive, adminis-trative, and professional employees, aswell as outside salespeople.

A bona fide executive under New YorkState law generally is an individual:

1. Whose primary duty consists of themanagement of the enterprise inwhich he or she is employed or of acustomarily recognized department orsubdivision thereof;2. Who customarily and regularly di-rects the work of two or more otheremployees therein;3. Who has the authority to hire orfire other employees or whose sugges-tions and recommendations as to thehiring or firing and as to the advance-ment and promotion or any otherchange of status of other employeeswill be given particular weight;4. Who customarily and regularly ex-ercises discretionary powers; and5. Who is paid a salary of not lessthan $600 per week, inclusive ofboard, lodging, other allowances andfacilities.

Minimum Wage / Overtime Pay • Page 1Revised 2/14

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A bona fide administrative employee un-der New York State law generally is anindividual:

1. Whose primary duty consists ofthe performance of office or non-manual field work directly related tomanagement policies or general op-erations of his or her employer;2. Who customarily and regularly ex-ercises discretion and independentjudgment;3. (a) Who regularly and directly as-sists an employer, or an employeeemployed in a bona fide executive oradministrative capacity (e.g., employ-ment as an administrative assistant),or (b) who performs under only gen-eral supervision specialized or tech-nical work requiring special training,experience, or knowledge; and4. Who is paid a salary of not lessthan $600 per week, inclusive ofboard, lodging, other allowances andfacilities.

A bona fide professional employee underNew York State law generally is an indi-vidual:

1. (a) Whose primary duty consists ofthe performance of work requiringknowledge of an advanced type in afield of science or learning customar-ily acquired by a prolonged course ofspecialized intellectual instructionand study, as distinguished from ageneral academic education and froman apprenticeship, and from trainingin the performance of routine men-tal, manual, or physical processes, or(b) whose work is original and creativein character in a recognized field ofartistic endeavor (as opposed to workwhich can be produced by a personendowed with general manual or in-


tellectual ability and training), and theresult of which depends primarily onthe invention, imagination, or talentof the employee; and2. (a) Whose work requires the con-sistent exercise of discretion and judg-ment in its performance, or (b) whosework is predominantly intellectualand varied in character (as opposedto routine mental, manual, mechani-cal, or physical work) and is of such acharacter that the output producedor the result accomplished cannot bestandardized in relation to a givenperiod of time.

An outside salesperson under New YorkState law generally is an individual whois customarily and predominantly en-gaged away from the premises of the em-ployer and not at any fixed site and loca-tion for the purpose of:

1. making sales;2. selling and delivering articles orgoods; or3. obtaining orders or contracts forservice or for the use of facilities.

The New York State Department of Laborwebsite now refers employers to the fed-eral definitions contained in the Fair La-bor Standards Act for exemptions fromovertime pay.

Nonetheless, some differences remainbetween the federal and state exemptions.It is unclear which set of definitions willgovern should an employer’s practices bechallenged under the New York Act. Pru-dent New York employers thereforeshould be aware of both state and fed-eral definitions.

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and independent judgment withrespect to matters of significance.

The rule contains a number of examplesdescribing how the administrative exemp-tion is to be applied. The examples spe-cifically address occupations includinginsurance claims adjusters, financial ser-vices employees, team leaders, executiveassistants, human resources managers,purchasing agents, inspectors, and ad-ministrators in educational institutions.

Learned Professional Exemption

To qualify for the learned professionalemployee exemption under federal law,the employee must meet the followingtests:

- The employee must be compen-sated on a salary or fee basis at arate not less than $455 per week;

- The employee’s primary duty mustbe the performance of work requir-ing advanced knowledge, definedas work which is predominantlyintellectual in character and whichincludes work requiring the con-sistent exercise of discretion andjudgment;

- The advanced knowledge must bein a field of science or learning; and

- The advanced knowledge must becustomarily acquired by a pro-longed course of specialized intel-lectual instruction.

The rule outlines specific criteria for ex-empting certain employees in select oc-cupations, including medical technolo-gists, registered nurses, dental hygien-ists, physician assistants, accountants,chefs, paralegals, athletic trainers, funeraldirectors and embalmers, and teachers.

The following summarizes the white col-lar exemptions available under the fed-eral Fair Labor Standards Act:

Executive Exemption

Exempt executive employees must meetthe following requirements under federallaw:

- The employee must be compen-sated on a salary basis at a ratenot less than $455 per week;

- The employee must have a primaryduty of managing the enterprise ora customarily recognized depart-ment or subdivision of the enter-prise;

- The employee must customarilyand regularly direct the work of atleast two or more other full-timeemployees (or the equivalent); and

- The employee must have the au-thority to hire or fire other employ-ees, or the employee’s suggestionsand recommendations as to thehiring, firing, advancement, pro-motion or any other change of sta-tus of other employees must begiven particular weight.

Administrative Exemption

Exempt administrative employees mustmeet the following requirements underfederal law:

- The employee must be compen-sated on a salary or fee basis at arate not less than $455 per week;

- The employee’s primary duty mustbe the performance of office or non-manual work directly related to themanagement or general businessoperations of the employer or theemployer’s customers; and

- The employee’s primary duty mustinclude the exercise of discretion

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computer programmer, softwareengineer or other similarly skilledworker in the computer field per-forming the duties described be-low;

- The employee’s primary duty mustconsist of:

1. The application of systemsanalysis techniques and proce-dures, including consultingwith users, to determine hard-ware, software or system func-tional specifications;

2. The design, development, docu-mentation, analysis, creation,testing or modification of com-puter systems or programs, in-cluding prototypes, based onand related to user or systemdesign specifications;

3. The design, documentation,testing, creation or modifica-tion of computer programs re-lated to machine operating sys-tems; or

4. A combination of the aforemen-tioned duties, the performanceof which requires the same levelof skills.

The regulations also note that the use ofmanuals by these employees containinghighly technical, scientific, or complexinformation will not necessarily defeatexempt status.

The New York Minimum Wage Act doesnot expressly adopt the federal exemp-tion for computer professionals. Stateregulations provide, however, that theAct's overtime requirements do not ap-ply to those employees who are exemptunder the Fair Labor Standards Act.Consequently, an employee who meetsthe requirements for the federal exemp-


Creative Professional Exemption

To qualify for the creative professionalemployee exemption under federal law,the employee must meet the followingtests:

- The employee must be compen-sated on a salary or fee basis at arate not less than $455 per week;and

- The employee’s primary duty mustbe the performance of work requir-ing invention, imagination, origi-nality or talent in a recognized fieldof artistic or creative endeavor, asopposed to work that can be pro-duced by a person with generalmanual or intellectual ability andtraining.

This exemption distinguishes the creativeprofessions from work that primarily de-pends on intelligence, diligence and ac-curacy. Exemption depends on the ex-tent of the invention, imagination, origi-nality or talent exercised by the employee,and is determined on a case-by-case ba-sis. The requirements of this exemptiongenerally are met by actors, musicians,composers, soloists, certain painters andwriters, cartoonists, essayists, and nov-elists.

Computer Employee Exemption

Exempt computer employees must meetthe following requirements under federallaw:

- The employee must be compen-sated either on a salary or fee ba-sis at a rate not less than $455 perweek or, if compensated on anhourly basis, at a rate not less than$27.63 per hour;

- The employee must be employedas a computer systems analyst,

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tion for computer professionals alsoshould be exempt from state overtime re-quirements.

Outside Sales Exemption

Exempt outside sales employees mustmeet the following requirements underfederal law:

- The employee’s primary duty mustbe making sales or obtaining or-ders or contracts for services or forthe use of facilities for which a con-sideration will be paid by the cli-ent or customer; and

- The employee must be customar-ily and regularly engaged awayfrom the employer’s place or placesof business.

- There are no salary requirements.

Consistent with the existing regulations,“engaged away from the employer’s placeor places of business” means that an out-side sales employee makes sales at thecustomer’s place of business, or, if sell-ing door-to-door, at the customer’s home.The rules clarify that outside sales do notinclude sales made by mail, telephone orthe Internet, unless such contact is usedmerely as an adjunct to personal calls.

Highly Compensated Employee Exemp-tion

The April 2004 federal regulations alsocreate a new exemption for those employ-ees who are considered “highly compen-sated.” Employees who receive total an-nual compensation of at least $100,000,including commissions and non-discre-tionary bonuses but excluding employercontributions toward insurance or retire-ment benefits, may be eligible for the ex-emption. To qualify, such employeesmust also be paid at least $455 per weekon a salary or fee basis, perform office or


non-manual work, and must “customar-ily and regularly perform at least one ofthe duties from the executive, adminis-trative, or professional duties tests.”

The $100,000 amount may be pro-ratedif an employee is employed for only partof a calendar year, but cannot be pro-rated if the employee takes leave withoutpay (such as Family and Medical Leave).The final regulations also provide employ-ers the ability to pay employees a “catch-up payment” within one month of theend of year, or within one month of whenthe employee terminates employment, tobring the employee’s total annual com-pensation up to $100,000.

III. Statute

A. Minimum WageThe New York State minimum wage forcovered employees is currently $8.00 foreach hour worked. This exceeds the cur-rent federal minimum wage of $7.25 perhour. Employers must pay the higher ofthe two applicable wage rates in order tosatisfy their legal obligations. The Stateminimum wage will rise to $8.75 per houron December 31, 2014 and to $9.00 perhour on December 31, 2015. If the fed-eral minimum wage ever becomes greaterthan the State minimum wage, the Stateminimum wage will automatically matchthe higher wage.

Under federal law, employers may paynew hires under age 20 an "opportunitywage" of not less than $4.25 per hourduring the first 90 calendar days of theiremployment, as long as the employer doesnot displace or take any other actionagainst current employees, including anyreduction in their hours or wages, to takeadvantage of this exception. These re-quirements apply regardless of whether

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the employee is paid an hourly wage, asalary, by piece rate or on a commissionbasis. With the state minimum wage at$8.00 per hour, however, this "opportu-nity wage" is likely unavailable to NewYork employers.

The minimum wage need not be paid en-tirely in cash. Employers are entitled tolimited credits for meals, lodging, andutilities customarily furnished to employ-ees. Employers whose employees cus-tomarily are tipped may also claim anallowance for tips, under most circum-stances.

The Act sets out specific minimum wagerules for food service workers and otherservice employees. A food service workeris defined as any employee primarily en-gaged in the serving of food or beveragesto guests, patrons or customers in thehotel or restaurant industries, who regu-larly receives tips from such guests,partrons or customers. The minimumwage for a food service worker must be acash wage of at least $5.00 per hour, andcredit for tips may not exceed $3.00 perhour, provided that the employee's tipsplus cash wages equal or exceed $8.00per hour. Additional requirements forfood service workers, and requirementsfor other types of service employees, con-tinue to be found in the Wage Order forthe Hospitality Industry.

The Act requires that covered employeesbe paid for working time which meanstime worked, or time of permitted atten-dance, including waiting time, whetheror not work is provided, and time spentin traveling as part of the duties of theemployee.

The issue of "call in pay" is addressed bythe Minimum Wage Orders applicable to


for-profit employers and non-profitmakinginstitutions subject to a minimum wageorder. Any employee who reports for workon any day at the request or permissionof the employer must be paid for at least4 hours, or the number of hours in theemployee's regularly scheduled shift,whichever is less, at the basic minimumhourly wage.

B. Sub-Minimum WageAlthough the Act permits learners, ap-prentices, and handicapped workers tobe employed at a rate below the mini-mum wage under limited circumstances,1986 amendments to the State’s WageOrders have eliminated this option forall employers except non-profit organi-zations.

C. Overtime PayThe Act and regulations thereunder re-quire that non-exempt employees receiveovertime pay in the amount of one andone-half times their regular rate for allhours worked in excess of 40 per week.New York State Department of Labor in-vestigators at the local level generallyadvise that compensatory time off maynot be used as a substitute for overtimepay except within a single work week.However, state regulations provide thatovertime may be paid in the manner andmethod provided by federal law.

Under federal law, an employer may of-fer employees time off as a substitute forovertime pay under the following condi-tions. First, time off cannot be less thanone and one-half times the number ofovertime hours worked. Second, time offmust be taken during the same pay pe-riod in which the overtime hours areworked. Thus, the regulations appear topermit time off as a substitute for over-time pay. To date, however, there has

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been no specific ruling by New York Stateholding that time off instead of overtimepay for non-exempt employees is permis-sible under State law. Employers whochoose to give time off instead of over-time pay should, in addition to followingthe rules under federal law, also adviseemployees of their practice before theemployee performs the overtime work, asNew York law generally requires that em-ployees receive prior notice of their ratesof pay and hours of work.

D. ProcedureThe New York State Department of La-bor, Division of Labor Standards, is re-sponsible for enforcing the Act. Its in-vestigators are authorized to receive andinvestigate claims for wages required tobe paid under the Act. They may enter aplace of business or employment, at anyreasonable time, to inspect payrollrecords and to question employees abouttheir wages and hours.

In 2005, the State Legislature authorizedthe Commissioner to establish a “fairwages task force” for the purpose of con-centrating enforcement of the wage lawsin manufacturing, service, and other in-dustries where a concentration of work-ers may be at risk of exploitation in NewYork State. The fair wages task force isempowered to inspect the books, records,and premises of employers to determinecompliance with orders and assessmentsof the Commissioner and wage laws in-cluding but not limited to minimumwage, overtime compensation, unemploy-ment insurance coverage, and child la-bor laws. During the course of its inves-tigation and inspection, the task forcealso may inspect books and records con-cerning federal, state, and local payrolltaxes and refer possible tax evasion tothe appropriate authorities. A similar

State task force has been in existence forthe garment industry.

If an investigation reveals violations ofthe Act, the Department of Labor can is-sue a compliance order requiring an em-ployer to pay the wages required by theAct, plus interest and a civil penalty ofup to 25 percent of the amount due. Thisorder can be challenged before the In-dustrial Board of Appeals and, thereaf-ter, in state court.

IV. Penalties/Other Relief Measures

The Wage Theft Prevention Act, passedin 2010, significantly expanded the rem-edies available under the Labor Law.These expanded remedies took effect onApril 9, 2011.

A. Criminal PenaltiesEvery employer, and any agent or officerof the employer, who fails to pay an em-ployee the minimum wages required bythe Act, or who fails to keep the requiredrecords, is subject to the criminal penal-ties discussed in Chapter 1, Payment ofWages, for these types of violations. Eachday’s failure to keep records, and eachpayment of less than minimum wage toan employee in any week, constitutes aseparate offense.

B. Civil Penalties and RemediesIf the Commissioner of Labor determinesthat an employer has violated a provi-sion of the Act, the Commissioner willdirect payment of wages, benefits, orsupplements due, plus liquidated dam-ages in the amount of 100 percent ofunpaid wages, as well as interest. If theemployer previously has been found inviolation of the Act or certain other wagepayment laws or regulations, or has com-


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mitted a willful or egregious violation, theCommissioner also will assess a civil pen-alty in an amount not to exceed doublethe total amount of wages, benefits, orsupplements found to be due.

In its order to comply, the Commissionermay also include an automatic 15 per-cent additional amount of damages tocome due upon the expiration of 90 daysfrom the date its order to comply becomesfinal.

Civil and criminal penalties and civil rem-edies for violations of the Labor Law'santi-retaliation provision are discussedin Chapter 1, Payment of Wages.

If the violation does not involve failure topay wages due, the Commissioner willassess a civil penalty of up to $1,000 forthe first violation, $2,000 for a secondviolation, and $3,000 for third or subse-quent violations.

The Commissioner of Labor or an em-ployee can bring a Court action to re-cover the difference between wages paidand wages due under the Act. If suc-cessful, the Commissioner or the em-ployee may recover the full amount ofwages due, pre-judgment interest, costs,attorneys' fees and, unless the employerproves that it had a good faith basis tobelieve that its underpayment of wageswas in compliance with the law, liqui-dated damages equal to 100 percent ofthe amount due.

Any monetary judgment or court orderthat remains unpaid for 90 days after thetime to appeal has expired will automati-cally increase by 15 percent.

The Commissioner may also institute anadministrative proceeding to recover

wages due under the Act. The Commis-sioner may recover the full amount ofwages due, costs, and an additionalamount for liquidated damages of up to100 percent of the wages due, unless theemployer proves that it had a good faithbasis to believe its underpayment ofwages was in compliance with the Act.

Civil actions generally must be com-menced within six years of the employer'sviolation of the Act.

V. Record-Keeping

Every employer must, for all employeessubject to the Act, establish, maintain,and preserve for not less than six yearscontemporaneous, true, and accuratepayroll records showing, for each weekworked, the following: the employee’sname, address, and social security num-ber, daily and weekly hours worked, therate(s) of pay and the basis for the rate(s)(whether paid by the hour, shift, day,week, salary, piece, commission, orother); gross wages; deductions; allow-ances claimed as part of the minimumwage; net wages; and student classifica-tion where applicable, for each employee.For all employees who are not exemptfrom overtime compensation, the payrollrecords also must include the employee’sregular hourly rate(s) of pay, overtimerate(s) of pay, the number of regularhours worked, and the number of over-time hours worked. For all employeespaid a piece rate, the statement must in-clude the applicable piece rate(s) andnumber of pieces completed at each piecerate. Payroll records for executive, admin-istrative, and professional employees neednot include hours worked, but payrollrecords of for-profit employers must con-tain a description of the exempt employ-ees' occupation.


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ALBANY Building 12, Room 185A (518) 457-2730State Office Building Campus12240






SYRACUSE 333 East Washington Street, Room 121 (315) 428-405713202

WHITE PLAINS 120 Bloomingdale Road (914) 997-952110605


The Act also authorizes the Commis-sioner of Labor to require employers toretain additional information in certaincircumstances. Further information, forexample, is required of employers sub-ject to industry-specific minimum wageorders.

Every employer must keep a summary ofthe Act or applicable regulations postedin a conspicuous place.


There are currently eight district officesof the Division of Labor Standards, NewYork State Department of Labor, whichdeal with minimum wage/overtime is-sues. Their addresses and phone num-bers are listed below:

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I. Introduction

The New York Labor Law specifies thetypes of employment and the conditionsunder which minors may work. In ad-dition to general prohibitions restrictingthe employment of minors in certain oc-cupations and in specified industries,there are specific prohibitions which per-tain to children under age 14, childrenage 14 and 15, and children age 16 and17. Generally, children under age 18must obtain an employment certificateor permit, which the employer is requiredto keep on file while the child is employed.

II. Coverage

The Law applies to any person under age18 and to all New York State employersinvolved in any trade, business or ser-vice. It also applies to employment agen-cies which place, procure or attempt toprocure employment for minors.

For establishments covered by the fed-eral Fair Labor Standards Act, federal lawon child labor may in some cases set dif-ferent standards than the State require-ments.

The requirements of State law do not af-fect an employer’s obligation to complywith any provisions of federal law if federalrequirements are stricter or more com-prehensive than the State’s requirements.

III. Statute

Generally, no child under age 18 maywork when attendance in school is re-quired and without an employment cer-tificate or permit. Specific prohibitionsdepend on the child’s age, type of work

and whether attendance is required inschool. Chapter 4, Section III. D discussesthe specific time limitations on permis-sible hours of work for minors.

A. Minimum Age Requirements1. Minors Under Age 14Children under age 14 generally maynot be employed at any time; exceptthat children age 11 or older maywork as newspaper carriers outsideschool hours, to deliver and/or sellnewspapers, shopping papers or pe-riodicals to homes or business places.Under federal law, a 14 year age mini-mum is required for delivery of peri-odicals and similar items. State lawalso permits and regulates the employ-ment of minors under age 14 in cer-tain limited types of farm-related work,as performers and models, and asbridge tournament caddies.

2. Minors Age 14 and 15Children age 14 and 15 may not workduring school hours or in factories.However, a child 15 years old, who nolonger can benefit from school instruc-tion, may work full-time in a placeother than a factory.

Outside school hours, children ages14 and 15 may be employed if an em-ployment certificate or permit is ob-tained. An employment certificate orpermit, however, is not required of achild age 14 or 15 who works as acaddie on a golf course, as ababysitter, in certain types of farmwork, or in casual employment doingyard work or household chores in andaround a residence or on the premisesof a non-profit, non-commercial or-ganization.

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CHAPTER 3 - EMPLOYMENT OF MINORS

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quirements by demonstrating to theCommissioner of Labor that it is notfeasible to fix the minor’s weekly hoursof work in advance.

B. Employment Certificates and PermitsAn employment certificate or permit gen-erally must be obtained by any child un-der age 18, except that certificates or per-mits are not required of a child age 14 or15 who works as a caddie on a golf course,as a babysitter, in certain types of farmwork, or in casual employment doingyard work or household chores in andaround a residence or on the premises ofa non-profit, non-commercial organiza-tion. Also, employment certificates orpermits are not required for a college stu-dent age 16 or older employed by a non-profit college, university, fraternity, so-rority, student association or faculty as-sociation.

Employment certificates or permits maybe revoked for cause at the discretion ofthe state education chancellor or super-intendent of a school district, or by theprincipal of a non-public high school.Such officials may revoke certificates orpermits of minor students who have failedfour or more academic courses in onesemester. Such officials, however, maynot prevent any student from obtaininga certificate or permit during the monthsof July or August.

1. Types of Employment CertificatesAmong the various types of employ-ment certificates and permits are aStudent Non-Factory EmploymentCertificate for children age 14 or 15;a Student General Employment Cer-tificate for children age 16 or 17; a

Employment of Minors • Page 21994 Edition

The Labor Law places further limita-tions on the number of hours andtimes of day that children age 14 and15 may work. The limits vary depend-ing on whether the work occurs whileschool is in session. Different timelimitations apply to minors employedas newspaper carriers, farm laborers,child performers or models, orbabysitters.

3. Minors Age 16 and 17Outside school hours, with certainexceptions, a child age 16 or 17 maywork in any trade, business or ser-vice including a factory, so long as thechild obtains an employment certifi-cate or permit. There are additionallimits on the number of hours andtimes of day that the child can work.The limits vary depending on whetheror not the minor is enrolled in school,whether the work occurs while schoolis in session, and whether the childis enrolled in an approved coopera-tive work experience program. Theselimits do not apply to minors em-ployed as newspaper carriers, farm la-borers, child performers or models, orbabysitters.

4. Posting of HoursEmployers must post a schedule forall minor workers in a conspicuousplace setting forth their starting time,meal times, and stopping times. Thepresence of a minor employee on theemployer’s premises outside theposted hours creates a presumptionthat the employer has violated the lawregarding employment of minors.Factory employers can obtain a per-mit dispensing with the posting re-

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Farm Work Permit for children age 12to 14 employed in the hand harvestof berries, fruits and vegetables or forchildren age 14 and 15 employed todo farm work before or after school orduring vacation. Among the othertypes of permits are a Newspaper Car-rier Permit required for children age11 to 18 who deliver and/or sell news-papers, shopping papers or periodi-cals to homes or places of business; aStreet Trade Permit for children age14 to 18 who sell newspapers or peri-odicals on streets or in public places;and a Child Performer Permit for anychild under 18 who resides in theState and renders modeling, artisticor creative services.

2. Requirements for ObtainingEmployment Certificates andPermitsTo obtain an employment certificateor permit, a child must submit a let-ter indicating parental permission towork, produce proof of age, and ob-tain a certificate of fitness indicatingthat the child is in good health andthe job will not adversely affect his/her physical condition. In some in-stances, a child may obtain a “lim-ited” certificate of fitness indicatingthat the child is not of sound healthfor all tasks and indicating whichtasks the child may perform safely.This certificate, accompanied by theother documentation, will entitle thechild to a limited employment certifi-cate restricting employment to speci-fied tasks.

C. Prohibited OccupationsRegardless of whether attendance inschool is required, minors are expresslyprohibited from working in certain occu-pations and in specified industries. For


example, children under age 18 may notwork in any occupation involving theoperation of power-driven tools and ma-chines; any occupation involving or con-nected with a quarry; any occupation inconstruction work, including wrecking,demolition, roofing or excavating opera-tions; the painting or exterior cleaningof a building structure from an elevatedsurface; in any occupation involving ex-posure to radioactive substances, ioniz-ing radiation, or exposure to silica orother harmful dust; or as a dancer orperformer in a facility where any per-former dances or performs unclothed andsuch employment would be harmful tothe minor in the manner described bypenal law.

The foregoing prohibitions do not applyto children under age 18 who are appren-tices individually registered in appren-ticeship programs registered with theCommissioner of Labor, or to student-learners enrolled in recognized coopera-tive vocational training programs, or totrainees in approved on-the-job trainingprograms. They also do not apply to chil-dren 16 to 18 years old employed in anoccupation in which the child has com-pleted training as a student-learner oras a trainee in an on-the-job training pro-gram, or has completed a training pro-gram given by a public school or in anon-profit institution which includessafety instruction approved by the Com-missioner of Labor.

In addition to the prohibited occupationsabove, the Commissioner of Labor mayissue regulations that prohibit or regu-late employment of minors in othertrades, processes, or occupations that theCommissioner deems to be dangerous orinjurious to minors. There are also 17

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ing which a minor is seriously injured ordies, the penalty is triple the maximumallowable penalty set forth above. In de-termining the appropriate monetaryamount, the Commissioner is requiredto consider the size of the employer’s busi-ness, the good faith of the employer, thegravity of the violation, the history of pre-vious violations and the failure to com-ply with record-keeping or other require-ments. For example, the gravity of theviolation would depend on such factorsas the age of the minor, whether the mi-nor was required to be in school, and thedegree of exposure to the hazards of pro-hibited occupations.

Employers and individuals who violatethe law also may face criminal penalties.Any person who knowingly violates thelaw on employment of minors is guilty ofa misdemeanor. This includes any of-ficer or agent of a corporation who know-ingly permits the corporation to violateany provisions of the law. A first offenseis punishable by a fine of up to $500 orimprisonment up to 60 days or both.Second and subsequent offenses are pun-ishable by a fine of up to $5,000 or im-prisonment up to one year or both.

In addition, an employer who knowinglydirects or authorizes a child under 17 toengage in work involving a substantialrisk of danger to the child’s life or healthis guilty of a misdemeanor punishableby up to one year in prison.

Penalties and remedies for violations ofthe Labor Law's anti-retaliation provisionare discussed in Chapter 1, Payment ofWages.

V. Record-Keeping

An employer must obtain an employment

Federal Hazardous Orders in Non-agri-cultural Occupations issued by the U.S.Department of Labor prohibiting theemployment of minors under age 18 en-gaged in interstate commerce.

Similarly, children under age 16 may notwork or assist in any occupation con-nected with a factory (except in deliveryor clerical positions in an enclosed officeof a factory), in dry cleaning stores, shoerepair shops and similar services. Fur-ther, children under age 16 may not workin the operation of washing, grinding,cutting, slicing, pressing or mixing ma-chinery; and the painting, exterior clean-ing, or maintenance of a building orstructure.

Finally, federal regulations issued by theU.S. Department of Labor under the fed-eral Fair Labor Standards Act furtherprohibit the employment of children un-der age 16 in certain occupations in in-terstate firms.

D. ProceduresWhen a child labor violation is reportedto the State Department of Labor, theDepartment conducts a compliance in-vestigation and makes a determinationregarding the assessment of a civil pen-alty. If the employer is dissatisfied withthe determination, it may appeal within60 days to the Industrial Board of Ap-peals.


An employer who violates the law regard-ing employment of minors can be finedup to $1,000 for the first violation, $2,000for the second violation, and $3,000 forthe third violation. In addition, if theviolation involves illegal employment dur-


NIXON PEABODY LLP Employment of Minors • Page 5Revised 2/10

certificate, or permit from a minor beforethat individual commences work. Theminor presenting the certificate or per-mit must sign his or her name on thedocument in the space provided for sig-nature. The employment certificate orpermit must be kept on file at the placeof employment during the minor’s em-ployment tenure and should be returnedto the minor upon termination. Tempo-rary placement agencies that assign mi-nors to temporary work at other estab-lishments, and that compensate the mi-nors for such services, must keep theoriginal of the employment certificate onfile and provide copies to the establish-ments where the minor works.

Employers also must obtain proof of agefrom any potential employee claiming tobe between 18 and 25 years old who doesnot present an employment certificate.The proof must be in the form of a driver’s

ALBANY Building 12, Room 185A (518) 457-2730State Office Building Campus12240




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SYRACUSE 333 East Washington St., Room 121 (315) 428-405713202

WHITE PLAINS 120 Bloomingdale Road, 10605 (914) 997-9521

license or other documentation issued bythe federal or state government or a cer-tificate of age issued by an “employmentcertificating official.” The employer mustfurnish such proof of age upon demandto the Commissioner or his/her autho-rized representative. Such proof of age,or a legible photocopy, or a previouslyissued employment certificate for the em-ployee kept on file at the place of em-ployment, shall be conclusive evidencethat the employee has reached the indi-cated age.


The State Labor Department, and morespecifically the Division of Labor Stan-dards, administers the Law governing theemployment of minors. The following isa list of offices maintained by the Divi-sion in various locations:

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I. Introduction

The Labor Law establishes the hours thatconstitute a legal day’s work, as well asmandatory rest periods and meal peri-ods for workers. These provisions alsospecify the hours of work for certain oc-cupations and for minors during andoutside school sessions. The Law is ad-ministered by the Division of Labor Stan-dards of the State Department of Labor.

II. Coverage

The Law covers all employees in New YorkState, except those in farm services, cer-tain employees in State hospitals, andcertain employees in the Bureau of Build-ing Management of the Office of GeneralServices during the annual session of theLegislature.

There are special provisions for transpor-tation workers, domestic workers, phar-macy apprentices and employees, com-pressed air workers, and firefighters es-tablishing the maximum hours that maybe worked in a defined time period.

A registered nurse or licensed practicalnurse who works for a health care em-ployer or in certain specified public em-ployment cannot be forced to work be-yond his or her “regularly scheduled workhours” as defined by the law, which in-cludes pre-scheduled on-call time andtime spent for the purpose of communi-cating shift reports. Exceptions exist fordisasters, states of emergencies, ongoingmedical or surgical procedures, andemergencies where the employer cannotfind a volunteer after making a good faitheffort. The law does not prohibit nursesfrom voluntarily working overtime.

Hours Of Work • Page 1Revised 2/13

CHAPTER 4 - HOURS OF WORK

For establishments covered by the fed-eral Fair Labor Standards Act, federal lawon child labor may in some cases set dif-ferent standards than the State require-ments. The requirements of State law donot affect an employer’s obligations tocomply with provisions of federal law,which impose stricter or more compre-hensive requirements than State law.

III. Statute

A. Legal Day’s WorkA legal day’s work, with certain excep-tions, is eight hours. Employers may en-ter into an individual or collective bar-gaining agreement, to provide additionalcompensation for any hours worked inexcess of eight.

B. One Day of Rest in SevenCertain employers, as outlined by theNew York Labor Law, are required to pro-vide their employees with at least 24 con-secutive hours of rest in each calendarweek. Before operating on Sunday, theemployer must designate a day of restfor every employee and notify the em-ployee in advance of his or her designatedday of rest.

The “day of rest” provision is applied toemployees of any employer that operatesa factory, mercantile establishment, ho-tel, restaurant, or freight or passengerelevator. It also applies to certain em-ployees of movie theatres, all employeesof other theatres, domestic workers, andto janitors, superintendents, supervisorypersonnel, security personnel, engineers,and firefighters employed at a dwelling,apartment, loft or office building, garageor storage building.

NIXON PEABODY LLP Hours Of Work • Page 2Revised 2/09

Within these employers, the day of restprovision does not apply to a foreman incharge, employees working in continu-ous industrial process operations inwhich no employee is permitted to workmore than eight hours a day; employeesin dry dock plants engaged in makingrepairs to ships; employees in dairies,creameries, milk condenseries and otheroccupations generally associated with thedairy industry where not more than sevenpersons are employed; employees in re-sort or seasonal hotels and restaurantsin rural communities and in certain sizecities and villages; and employees whoseduties include not more than three hours’work on Sunday in setting sponges inbakeries, caring for live animals, main-taining fires, or making necessary repairsto boilers or machinery.

The Commissioner of Labor is empow-ered to grant a variance from the one dayof rest in seven requirement upon a show-ing of practical difficulties or unneces-sary hardship to the employer, as longas the spirit of the requirement is pre-served and substantial justice is done.

C. Meal PeriodsAccording to State law, every person em-ployed in a factory must be allowed anoonday meal period of at least 60 min-utes and every person employed in a mer-cantile or other establishment must beallowed at least a 30-minute meal period.The noonday meal period generally ex-tends from 11:00 a.m. to 2:00 p.m. Anemployee who works a shift of more thansix hours, which extends over the noon-day meal period, is entitled to at least 30minutes off within that period.

Every person employed in a factory for aperiod or shift of more than six hoursstarting between 1:00 p.m. and 6:00 a.m.must be allowed a meal period of at least

60 minutes, and every person employedin a mercantile or other establishment isentitled to a meal period of at least 45minutes at a time midway between thebeginning and end of such period orshift. Guidelines issued by the Commis-sioner allow employers to provide a 30-minute meal period as long as there isno indication of hardship to the em-ployee.

The Commissioner of Labor may issue apermit to an employer allowing a mealperiod shorter than 30 minutes. A mealperiod of at least 20 minutes will be per-mitted only in special or unusual casesafter investigation and issuance of a spe-cial permit. The Commissioner may re-voke the permit at any time.

Finally, an additional meal period of atleast 20 minutes must be provided be-tween 5:00 p.m. and 7:00 p.m. when anemployee begins work before 11:00 a.m.and continues working past 7:00 p.m.

On occasion there may be only one em-ployee who is on duty and, therefore, itis customary for that person to eat onthe job without being relieved. This ispermissible if the employee voluntarilyconsents to the arrangement. However,if the employee objects or requests an un-interrupted meal period, the employermust provide it.

Employers are not required to providerest periods to employees other than themeal periods described above.

D. Hours of Work for Minors1. Children Under Age 14Children under age 14 may be em-ployed only in the following occupa-tions:

a. As a child performer or model;


a. more than four hours on anyday preceding a school day, exceptSundays and holidays;b. more than eight hours on anyday when school is not in session;c. more than 28 hours in a week;d. more than six days in any week;e. after 10 p.m. on any day pre-ceding a school day. The child maywork until 12 a.m. if the employerreceives and maintains the writtenconsent of the child’s parent orguardian and verification from thechild’s school at the end of eachmarking period of the child’s sat-isfactory academic standing; orf. after 10 p.m. on any day pre-ceding a non-school day. The childmay work until 12:00 a.m. if theemployer receives and maintainsthe written consent of the child’sparent or guardian.

Children age 16 and 17 who are en-rolled in a cooperative work experienceprogram approved by the Departmentof Education may be employed sixhours a day on any day preceding aschool day, except Sundays and holi-days. When school is not in session,children age 16 and 17 may not work,with certain exceptions, more thaneight hours a day, 48 hours a week orsix days a week, or between 12:00 a.m.and 6:00 a.m. These same prohibi-tions apply to children age 16 and 17not attending school.

4. Posting of HoursEmployers must post a schedule list-ing the times at which all minor em-ployees begin and end work and takemeal breaks. The employer may makechanges in a minor’s work scheduleas long as the changes are also madeon the posted schedule.

b. As a newspaper carrier if thechild is at least 11 years old;c. For certain farm-related work, orcertain outdoor work for family mem-bers, if the child is age 12 or 13.

2. Children Age 14 and 15When school is in session, no childage 14 or 15 may work in any occu-pation (except farm work, newspapercarrier, child performer or model andbabysitter):

a. more than three hours on aschool day;b. more than eight hours on anyday when school is not in session;c. more than 18 hours a week;d. more than six days a week; ore. after 7:00 p.m. or before 7:00 a.m.

Children age 14 and 15 who work aspart of a supervised work study pro-gram approved by the Commissionerof Education, however, may work 23hours a week.

When school is not in session, chil-dren age 14 and 15 may not work morethan eight hours a day, 40 hours aweek, or six days a week or after 7:00p.m. or before 7:00 a.m. Such chil-dren may work until 9:00 p.m., how-ever, between June 21 and Labor Day,and as camp counselors during June,July, and August.

3. Children Age 16 and 17When school is in session, childrenage 16 or 17 may not, with certainexceptions, be employed in any occu-pation (except farm work, newspapercarrier, child performer or model,babysitter, bridge tournament caddie,or a 17 year old counselor at achildren’s camp during June, Julyand August):


If a minor is present on the employer’spremises outside of the work hoursposted, or if the employer does notpost a schedule, the employer is pre-sumed to be in violation of the law.An employer operating a factory whocannot determine weekly work hoursin advance may apply to the Commis-sioner for an exemption from the post-ing requirement.

E. ProceduresA representative of the Commissioner ofLabor will conduct a compliance investi-gation when a violation is reported andmake a determination regarding the as-sessment of a civil penalty. If the em-ployer is dissatisfied with the determina-tion, the employer may appeal within 60days to the Industrial Board of Appeals.


Any person who violates the labor lawprovisions concerning hours of work, andany officer or agent of a corporation whoknowingly permits the corporation tocommit such a violation, is guilty of amisdemeanor punishable by imprison-ment or fines or both.

Civil monetary penalties also may be im-posed for violations of the day of rest andmeal period requirements. The Commis-sioner will assess a civil penalty of up to$1,000 for a first violation, up to $2,000for a second violation, and up to $3,000for each subsequent violation. In deter-mining the amount of the penalty, theCommissioner will consider the size ofthe employer’s business, the good faithof the employer, the gravity of the viola-tion, the history of previous violations,and the failure to comply with other non-wage requirements.

Penalties for violation of the laws relat-ing to employment of minors are dis-cussed in Chapter 3, Section II.

Penalties and remedies for violations ofthe Labor Law's anti-retaliation provisionare discussed in Chapter 1, Payment ofWages.

V. Record-Keeping

Employers are required to keep payrollrecords, including records of hoursworked as described in Chapters 1 and2, Payment of Wages and MinimumWage/Overtime. These records must bekept for at least six years and must bemade available upon request of the Com-missioner of Labor at the place of em-ployment.

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ALBANY Building 12, Room 185 A (518) 457-2730State Office Building Campus12240






SYRACUSE 333 East Washington St., Room 121 (315) 428-405713202

WHITE PLAINS 120 Bloomingdale Road (914) 997-952110605


The Division of Labor Standards of theState Labor Department administers thelaw governing hours of work. The fol-lowing is a list of offices maintained bythe Division in various locations:

Hours Of Work • Page 5Revised 2/10

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records.

“Age” as used in the statute refers to per-sons 18 and older.

“Creed” refers to an individual’s religiousbeliefs.

“National origin” encompasses ancestryon both maternal and paternal sides ofthe family.

"Sexual orientation" means heterosexu-ality, homosexuality, bisexuality orasexuality, whether actual or perceived.The Law's protection based on sexual ori-entation does not protect conduct other-wise proscribed by law.

“Military status” means a person’s par-ticipation in the military service of theUnited States or the military service ofthe state, including but not limited to,the armed forces of the United States, thearmy national guard, the air nationalguard, the New York naval militia, theNew York guard, and such additionalforces as may be created by the federalor state government as authorized by law.

“Sex” discrimination is that based on anindividual’s gender. Men, as well aswomen, may bring sex discriminationsuits. An employment policy or practicewhich excludes employees because of“pregnancy” is an unlawful discrimina-tory practice because of sex.

A “disability” is a physical, mental ormedical impairment, a record of such animpairment, or a condition regarded byothers as such an impairment that, uponthe provision of reasonable accommoda-tions, does not impair the person fromperforming in a reasonable manner, the

CHAPTER 5 - HUMAN RIGHTS LAW

I. Introduction

The New York State Legislature enactedthe New York Human Rights Law, in part,to assure that people in New York Statewere provided an equal opportunity toenjoy a full and productive life. The Leg-islature found that the failure to providesuch equal opportunity, whether becauseof discrimination, prejudice, intoleranceor inadequate education or training,threatened the rights and privileges ofpeople, menaced the basis of the institu-tions and foundations of a free demo-cratic state and endangered the peace,order, health, safety and general welfareof the State and its inhabitants.

To ensure equal opportunity, the NewYork Human Rights Law protects indi-viduals from discrimination in the termsor conditions of employment because oftheir age, race, color, religious beliefs,national origin, sexual orientation, mili-tary status, sex, disability, predisposinggenetic characteristics, marital status,domestic violence victim status, prior ar-rest, and conviction records.

The State Division of Human Rights wasestablished to enforce the Human RightsLaw.

II. Coverage

Generally, the Human Rights Law appliesto employers who employ four or morepersons. The Human Rights Law pro-tects individuals in certain protected cat-egories. Those categories are: age, race,creed, color, national origin, sexual ori-entation, military status, sex, disability,predisposing genetic characteristics,marital status, domestic violence victimstatus, prior arrest, and conviction

Human Rights Law • Page 1Revised 2/10

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duties of the job held or sought.

“Predisposing genetic characteristic”means any inherited gene or chromo-some or alteration of a gene or chromo-some which is (1) determined by a ge-netic test or inferred from informationderived from an individual or familymember and (2) scientifically or medicallybelieved to predispose an individual oran individual’s offspring to a disease ordisability, or to be associated with a sta-tistically significant increased risk of de-velopment of a physical or mental dis-ease or disability.

“Marital status” refers solely to whethera person is married, single or divorced.The definition does not include the em-ployment or social status of one’s spouse.

A “domestic violence victim” means anindividual who is a victim of a family of-fense under the family court act, whichincludes stalking, menacing, harass-ment, disorderly conduct, reckless en-dangerment, and assault, where the of-fense is committed by a spouse, formerspouse, parent, child or member of thesame family or household.

III. Statute

A. Unlawful Discriminatory PracticesThe Human Rights Law prohibits certainacts that are deemed to be discrimina-tory practices. It is a discriminatory prac-tice, for example, to refuse to hire or em-ploy, to bar or to discharge protected in-dividuals, or to discriminate against anindividual in compensation or in theterms, conditions or privileges of employ-ment because of that person’s age, race,creed, color, national origin, sexual ori-entation, military status, sex, disability,predisposing genetic characteristics,


marital status, domestic violence victimstatus, prior arrest, and convictionrecords.

It is also an unlawful discriminatory prac-tice for an employer to print or circulatea statement, advertisement, or publica-tion, or to use an application or to makepre-employment inquiries that indirectlyor directly express discrimination as toage, race, creed, color, national origin,sexual orientation, military status, sex,disability, predisposing genetic charac-teristics, marital status, or arrest.

An employer may not inquire into anapplicant's or employee’s non-pendingarrest record, but may make inquiriesconcerning the applicant's or employee’sconviction record, other than youthful of-fender adjudications, sealed convictionsfor certain violations, and sealed convic-tions for certain offenses after comple-tion of an approved drug treatment pro-gram. Applicants and employees may notbe required to divulge the informationabout which inquiry is prohibited. A con-viction may form the basis for a denial ofemployment only where the offense is di-rectly related to the job sought, or wherethe offender would pose an unreasonablerisk to life and property.

After an employee has been hired, it maybe lawful for an employer to inquire intocertain protected characteristics of theemployee, so long as the employer has avalid business reason and the informa-tion is not used for an unlawful discrimi-natory purpose. For example, these in-quiries may be made in conjunction withconducting a legally required survey ofracial/ethnic identity if the informationis not used as a basis for an unlawfuldiscriminatory practice, e.g., denying anemployee a promotion.

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least $44,000 annually in certain typesof retirement benefits may be required toretire when they reach age 65. The Hu-man Rights Law also permits compulsoryretirement at age 70 of persons with un-limited tenure employed at private insti-tutions of higher education. However,compulsory retirement of tenured facultyis no longer lawful under the federal AgeDiscrimination in Employment Act.

Sexual harassment is among the dis-criminatory practices made unlawful bythe Human Rights Law. Sexual harass-ment includes unwelcome sexual ad-vances, requests for sexual favors, andother conduct of a sexual nature, eitherverbal or physical. Such behavior is aviolation of the Law when submission toit is either explicitly or implicitly a con-dition of employment, when the employermakes submission to or rejection of theconduct a basis for employment decisionsconcerning the employee approached, orwhen the conduct adversely affects theemployee’s job performance or work en-vironment.

Domestic workers are protected againstsexual harassment and other unwelcomeharassment based on gender, race,religion or national origin by employerswho employ as few as one person.Domestic workers are not covered byother provisions of the Human RightsLaw.

The Human Rights Law also protects per-sons with disabilities that do not preventthem from performing in a reasonablemanner the duties of the job sought orheld.

Therefore, even if a disability prevents anemployee from performing, every aspectof a job, the employer may not discrimi-


It is an unlawful discriminatory practicefor an employer to discharge or other-wise discriminate against any person be-cause he has opposed any practices for-bidden under the Human Rights Law orbecause he has filed a complaint, testi-fied or assisted in any proceeding underthe Human Rights Law.

Discriminatory practices also include anemployer compelling a pregnant em-ployee to take a leave of absence, pro-vided that the pregnancy does not pre-vent the employee from performing herjob in a reasonable manner. Further-more, an employer may not discriminateagainst a pregnant employee in calculat-ing seniority or under a sick leave plan.In addition, employee benefit plans mustprovide coverage for disability caused orcontributed to by pregnancy on the samebasis as coverage for other temporary dis-abilities.

If an employer has a parental leave policy,i.e., a policy which provides non-disabil-ity-related leave to employees for child-rearing purposes, the policy may not dis-criminate against parents of newly-adopted children. (Labor Law § 201-c)

If an employer has a funeral orbereavement leave policy that allowsemployees to take time off for the deathof a spouse, or for the death of a child,parent or other relative of the spouse, theemployer must offer the same leave toemployees for the death of their same-sex committed partner, or for the deathof the child, parent or other relative ofthe employee’s same-sex committedpartner. [Civil Rights Law § 79-n]

Mandatory retirement policies generallyare unlawful. Certain policymakers andexecutives who are entitled to receive at

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an HIV test on any individual withoutfirst receiving the written informed con-sent of that individual. Information ob-tained from any HIV test must not be dis-closed except to the subject of the testand to other authorized individuals.

Employers also are prohibited from di-rectly or indirectly soliciting, requiring,or administering genetic tests, or solicit-ing or requiring information from whicha predisposing genetic characteristic canbe inferred, as a condition of employment.The legislation also prohibits employersfrom buying or acquiring the results ofsuch tests or information. The law con-tains only a few narrow exceptions to thisprohibition: (1) An employer may requirea genetic test as a condition for employ-ment where the specific test is shown tobe directly related to the occupational en-vironment, such that an employee witha particular genetic anomaly might be ata higher risk of disease as a result ofworking in that particular environment;(2) An employee can request a genetic testfor use in a workers' compensation claimor civil litigation, or to determine theemployee's susceptibility to potentiallycarcinogenic, toxic, or hazardous sub-stances found at work. However, an em-ployer may not terminate or adverselyaffect any terms, conditions, or privilegesof the employee's employment based onthe results of a test to determine suscep-tibility.

Employees who consent to testing forthese allowable purposes must sign aconsent form which explicitly states thespecific purpose, use, and limitations ofthe test as well at the specific traits orcharacteristics to be tested.

Under the New York Civil Rights Law, therecords, findings, and results of any ge-

nate where the employee can still fulfillhis duties in a reasonable manner. Pre-employment physical examinations relat-ing to minimum physical standards foremployment are lawful, provided theminimum physical standards are reason-ably necessary for the work to be per-formed and the examinations are uni-formly given to all the applicants for theparticular job. The Law protects an in-dividual with a disease or impairment in-volving future risk so long as the diseaseor impairment does not currently inter-fere with the individual’s ability to per-form the duties necessary for the job.AIDS (Acquired Immune Deficiency Syn-drome) and HIV-positive status (i.e., hav-ing the virus that causes AIDS) are medi-cal conditions considered a disabilityunder the New York Human Rights Law.

Employers and other persons covered bythe Human Rights Law may not discrimi-nate against a blind person, a hearingimpaired person,or a person with a dis-ability on the basis of his or her use of aguide dog, hearing dog, or service dog,as defined by the Human Rights Law.

It also is a discriminatory practice underthe Human Rights Law for an employerto refuse to provide "reasonable accom-modations" to the known disabilities ofan employee or prospective employee. Areasonable accommodation is any actionwhich allows a disabled employee or pro-spective employee to perform in a rea-sonable manner the functions of the job,without imposing an undue hardship onthe employer. This requirement bringsthe Human Rights Law more into linewith the federal Americans with Disabili-ties Act, which also requires the provi-sion of reasonable accommodations.

Employers are prohibited from ordering


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netic test may not be disclosed withoutthe written informed consent of the per-son tested. No person may perform agenetic test without first receiving writ-ten informed consent from the subjectindividual.

An employer, and its agents or employ-ees, may not impose any terms or condi-tions of employment that would requirean employee or prospective employee toviolate or forego a sincerely held practiceof his or her religion, including but notlimited to observance of Sabbath or holydays, unless the employer first engagesin a bona fide effort to reasonably accom-modate the belief or practice, and candemonstrate that it is unable to do sowithout undue hardship. “Undue hard-ship” means an accommodation requir-ing significant expense or difficulty, in-cluding a significant interference with thesafe or efficient operation of the workplace, or a violation of a bona fide se-niority system.

Certain discriminatory practices are notunlawful if the protected category orcharacteristic is a bona fide occupationalqualification (“BFOQ”). A BFOQ is aqualification essential for the specific jobat issue, whether because it is a factor injob performance or in terms of commu-nity standards of propriety. The Divi-sion has ruled that sex may be a BFOQin limited circumstances, such as hiringa model for men’s clothes or a woman towork as an attendant in a women’s wash-room. Consideration may be given to ageas a BFOQ only where age is a bona fidefactor in connection with job perfor-mance or in complying with the provi-sion of other statutes, e.g., laws regulat-ing employment of minors. The termBFOQ, however, is narrowly applied, andrace or color is rarely, if ever, recognizedas a basis for a BFOQ.

B. Equal PayAn employee’s right to equal pay regard-less of his or her sex is protected by theHuman Rights Law’s prohibition of dis-crimination in compensation. Specificsafeguards are also contained in NewYork’s Labor Law, which provides thatno employee shall be paid a wage at arate less than the rate paid to an em-ployee of the opposite sex for equal workin the same establishment. “Equal work”is defined as a job requiring equal skill,effort and responsibility, and is performedunder similar working conditions. Anemployer may establish a differential inpay, however, based on a seniority sys-tem, merit system, a system that mea-sures earnings by the quantity or qual-ity of production, or any factor other thansex.

C. Procedures1. Administrative ProceedingThe enforcement procedure of the Hu-man Rights Law is set into motionwhen a verified complaint is filed withthe Division. This must be donewithin one year of the alleged viola-tion of the statute. The Division in-vestigates the complaint and makes adetermination as to whether there isprobable cause to believe the partynamed has engaged in an unlawfuldiscriminatory practice. The Divisionmay seek to eliminate such an un-lawful discriminatory practice by con-ference, conciliation, and persuasionat any time after the filing of the com-plaint. Conciliation agreements aresimilar to contracts between the em-ployer and the Division, in which theremay be provisions requiring the em-ployer to refrain from illegal behaviorin the future. If, on the other hand,the Division finds that there is noprobable cause to believe the alleged

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evidence at the hearing, the Commis-sioner of Human Rights finds that theemployer has engaged in any unlaw-ful discriminatory practice, the Com-missioner will issue an order to thateffect.

Any party or any other person ag-grieved by any order of the Divisionor of the Commissioner granting re-lief or making a final disposition of acomplaint may obtain or seek judi-cial review. Alternatively, the Divisionmay obtain a court order for the en-forcement of an order issued by theDivision or the Commissioner. Thisreview must be initiated by the filingof a petition in the appropriate courtwithin 60 days after the service of adecision or order.

The jurisdiction of the courts is ex-clusive and their judgments andorders are final, except that they maybe subject to further appellate review.

2. Judicial ProceedingRather than filing a complaint withthe Division, a complainant may godirectly to state court. The HumanRights Law entitles a person who al-leges that he or she is aggrieved byan unlawful discriminatory practiceto sue for damages and other relief.This judicial action is governed by athree-year statute of limitations. Thecomplainant may not sue in court,however, if he or she already has fileda complaint with the Division or a lo-cal human rights commission regard-ing the same violation, unless the Di-vision has dismissed the complaint onthe grounds of (1) administrative con-venience, (2) untimeliness, or (3) atthe complainant's request, annulmentof the election of remedies. A charge


violation took place, the complaint willbe dismissed. In this case, the com-plainant may seek judicial review ofthe determination in the State Su-preme Court.

There is no simple definition of “prob-able cause.” As a rule of thumb, theDivision will find probable cause if,after a fair investigation and after re-solving all issues of credibility aboutmaterial facts in favor of the complain-ant, there is enough evidence of dis-crimination to entitle the complain-ant to a hearing.

The Division may dismiss a complaintbefore hearing on several groundsother than lack of probable cause. TheDivision may dismiss the complaintfor its own administrative conve-nience, under certain circumstances.The Division also may dismiss a com-plaint because it is untimely. And,the Division may now grant acomplainant's request to annul thefiling of a complaint, in order to an-nul his or her election of remedies.The effect of these dismissals is that,under many circumstances, an em-ployee with a Human Rights Law com-plaint will be able to unilaterally dis-continue his or her administrativeproceedings, and file a lawsuit incourt, even if the employee originallychose to seek administrative resolu-tion by the Division.

If the complaint remains with the Di-vision, the Division is required to servewritten notice requiring the employerto answer the charges of the com-plaint and appear at a public hear-ing. All parties are allowed to presenttestimony in person or by counsel andto cross-examine witnesses. If, on the

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filed by the federal Equal EmploymentOpportunity Commission does notserve as a bar to seeking judicial rem-edy.


A. ReliefThe Division can grant different forms ofrelief for unlawful discriminatory prac-tices. The Division’s order may:

1. Require the employer to cease anddesist from the unlawful discrimina-tory practice;2. Require the employer to take affir-mative action, including (but not lim-ited to) hiring, reinstatement or up-grading, with or without back pay;3. Require the employer to admit theindividual to a guidance program, ap-prenticeship or other training pro-gram;4. Award compensatory damages tothe aggrieved person;5. Impose civil fines and penalties inan amount up to $50,000 or, if theconduct is found to be willful, wan-ton, or malicious, up to $100,000.6. Require payment to the State of theprofits obtained through the unlaw-ful discriminatory practices; and7. Require a compliance report. At anytime after a complaint has been filed,if the Division determines that theemployer is doing any act tending torender any remedial order ineffectual,the Commissioner may apply to StateSupreme Court for an order requir-ing the employer to show cause whyit should not be enjoined from doingthe act in question. The order to showcause may also contain a temporaryrestraining order. On the return dateof the order to show cause, the Courtmay grant injunctive relief if the Court


finds such relief is necessary to pre-vent the employer from rendering aDivision order ineffectual.

If a complainant elects to bring a dis-crimination charge in court, the courtmay award “damages and such otherremedies as may be appropriate.” Thetypes of remedies deemed available bycourts have included injunctive relief,awards of backpay, front pay, com-pensatory damages, and, according tosome, but not all courts, punitivedamages.

B. PenaltiesThe Commissioner may impose civil finesand penalties as stated in Section Aabove.

Any employer who willfully interfereswith the Division or its employees or whowillfully violates an order of the Divisionor Commissioner is guilty of a misde-meanor. Such action is punishable byimprisonment for not more than one year,or by a fine of not more than $500, orboth.

An employer who violates the equal payprovisions of the Labor Law could be li-able for civil and criminal penalties, aswell as attorneys’ fees and liquidated dam-ages, if the violation is found to have beenwillful. The Labor Law is enforced bythe New York State Commissioner of La-bor.

V. Record-Keeping

There is no specific time for retention ofrecords in either the Human Rights Lawor the Division’s regulations. Should aclaim be brought against an employerunder the Human Rights Law, however,the retention of records for purposes of

NIXON PEABODY LLP Human Rights Law • Page 8Revised 2/11

complying with Title VII of the CivilRights Act of 1964 (generally, the longerof one year or until the claim is resolved)or complying with the Age Discrimina-tion in Employment Act (generally thelonger of three years for payroll recordsand one year for personnel records oruntil the claim is resolved) should sat-isfy whatever evidentiary or proceduralrequirements are encountered.


A. Division of Human RightsThe New York State Human Rights Lawestablishes the Division of Human Rightsas the state agency primarily responsiblefor enforcement of the prohibitionsagainst employment discrimination, aswell as the formulation of policy in ac-cordance with the Law. The Division isgiven the power to adopt, amend or re-scind rules and regulations governingemployment practices. More importantly,it has the power to receive, investigateand rule upon complaints alleging viola-tions of the Law.

The head of the Division is the Commis-sioner. The Commissioner is appointedby the Governor, with the advice and con-sent of the Senate, and holds office atthe pleasure of the Governor.

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ALBANY Empire State Plaza (518) 474-2705Agency Building 1, 2nd Floor12220


BRONX 1 Fordham Plaza, 4th Floor (718) 741-840010458

BROOKLYN 55 Hanson Place, Room 1084 (718) 722-238511217


HAUPPAUGE State Office Building (631) 952-6434250 Veterans Memorial Highway11788

HEMPSTEAD 175 Fulton Avenue, Suite 404 (516) 538-136011550

MANHATTAN 55 Hanson Place, Room 900 (718) 722-2060(Lower) Brooklyn, 11217

MANHATTAN 163 West 125th Street, 4th Floor (212) 961-8650(Upper) 10027

ROCHESTER 259 Monroe Avenue, Room 308 (585) 238-825014607

SYRACUSE 333 East Washington Street (315) 428-4633Room 543, 13202

WHITE PLAINS 8 John Walsh Blvd., Suite 204, (914) 788-8050Peekskill, 10566

B. OrganizationThe State Division of Human Rights' ad-ministration office is located in New YorkCity. The locations of the regional officesare:


NIXON PEABODY LLP

CHAPTER 6 - RIGHT-TO-KNOW LAW

I. Introduction

A. Employee Right-to-Know LawThe New York Right-to-Know (“RTK”) Lawgives employees and former employees aright to know the effects of and circum-stances under which they have been orcould have been exposed to toxic sub-stances. The RTK Law also requires em-ployers to obtain toxic substance infor-mation and create educational programsfor certain employees.

B. Patient Access to Records of HealthAssessmentsThe state Public Health Law requireshealth care facilities and practitioners todisclose to a patient information pertain-ing to medical examinations and treat-ment. This requirement also pertains tohealth assessments made for employmentpurposes. All health professionals, in-cluding employer-provided nurses anddoctors, are subject to this requirement.

C. Community Right-to-Know LawNew York does not have a CommunityRight-to-Know Law requiring disclosureof toxic substance information to the gen-eral public.

Congress, however, has enacted a federalstatute, the Superfund Amendments Re-authorization Act, which requires certaincompanies to participate in the formula-tion of community emergency responseplans. One provision of this law requiresall employers to provide a list of hazard-ous chemicals to certain State agenciesand to the appropriate fire department.

Right-To-Know Law • Page 11994 Edition

II.Coverage of the New YorkRTK Law

The RTK Law covers every businesswhich has at least one employee, includ-ing the State and its political subdivi-sions. It does not cover persons whoemploy domestic workers or casual la-borers at their residence.

Employer obligations under the RTK Laware triggered when they have employeeswho may be exposed to a substance reg-istered in the National Institute for Oc-cupational Safety and Health Registry ofToxic Effects of Chemical Substances,which contains almost 60,000 sub-stances.

A. PreemptionIn 1992, the United States Supreme Courtdecided a case addressing the relation-ship between the federal OccupationalSafety and Health Act (“OSH Act”) andstate standards regulating the same sub-ject areas. In Gade V. ‘National SolidWastes Management Association, 112S.Ct. 2374 (1992), the Court held thatthe OSH Act preempts state laws thatregulate areas of occupational safety andhealth for which a federal standard is ineffect. State laws are valid, according tothe Court, only if the state has an ap-proved plan that displaces all federal regu-lations; if the Occupational Safety &Health Administration (“OSHA”) has notissued a federal standard or regulationin the area; or, if the state law regulatesworkers “simply as members of the gen-eral public.” Absent one of these factors,a state may not supplement federal re-quirements by imposing stricter regula-tions.

NIXON PEABODY LLP

termines that health reasons necessitatesuch a request. The fourth allows theCommissioner to require an employer tomaintain additional records of employeeexposure to toxic substances where sci-entific evidence exists to question cur-rent exposure threshold limits.

B. Labor Law1. Posting and DisclosureOf more importance to employers arethe obligations imposed by the RTKLaw’s amendments to the Labor Law.Employers are required to post a no-tice in their workplace informing em-ployees of their right to informationregarding toxic substances with whichthey may come into contact duringthe course of their employment. Uponrequest of employees or their repre-sentatives, employers must provide(within 72 hours) additional informa-tion, including the names and prop-erties of the chemicals used andproper safety procedures for workingwith them.

Although manufacturers of toxic sub-stances are obligated by the RTK Lawto provide toxic substance informationin response to employers’ requests, theLaw places the ultimate burden uponemployers to obtain the necessary in-formation from chemical manufactur-ers, governmental agencies or anyother source.

2. Employee EducationEmployers must also establish a toxicsubstances education and trainingprogram for those employees routinelyexposed to toxic substances. Suchprograms must be provided to employ-ees prior to a job assignment, and theprogram must be repeated annuallythereafter. Additional instructions

Right-To-Know Law • Page 2Revised 2/04

New York State does not have an approvedstate plan that displaces all federal regu-lations. Moreover, OSHA has issued aHazard Communication Standard cover-ing employees who work with hazardoussubstances. The Standard specificallyprovides that it preempts both state andlocal laws concerning hazard communi-cation. Given this express preemptionprovision, and the Supreme Court’s de-cision in Gade, the federal Hazard Com-munication Standard almost certainlypreempts New York’s Right-to-Know Law.The practical effect of this preemptionmay be negligible, however, because therequirements of the federal Standard aresubstantially similar to those of the NewYork RTK Law.

III. Statute

A. Public Health LawThe RTK Law is divided into two parts.The first amends the Public Health Lawto grant the State Commissioner of Healthauthority to undertake investigations,collect information from employers andcreate informational programs for thepublic. These amendments create fewaffirmative employer obligations.

Nonetheless, several significant new pow-ers are vested in the Commissioner. Thefirst is a general right of entry into anyworkplace where the Commissioner sus-pects that employees are exposed to toxicsubstances at hazardous levels. The sec-ond gives the Commissioner authority toobtain copies of employee health and ex-posure records maintained and suppliedto the federal government pursuant tofederal statutes or regulations controllingthe use of toxic substances. The thirdpermits the Commissioner to obtain thenames and addresses of current andformer employees if the Commissioner de-

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must be given if new chemicals or pro-cesses are introduced which changethe potential for exposure.

3. Trade SecretsEmployers may register trade secretswith the Commissioner of Health.Thereafter, they can respond to re-quests for information about trade se-crets by advising in writing that suchsubstances are trade secrets and thatinformation concerning the health ef-fects of such substances is availableonly without information which woulddisclose the trade secret. Employersthen must provide information aboutthe toxic effects of the substanceswithout the trade secret information.

4. Retaliation ProhibitionEmployers also are prohibited fromretaliating against employees who ex-ercise any right created by the Law,including filing of complaints, re-quests for information, testimony inproceedings or refusals to work withtoxic substances when requested in-formation is not provided within 72hours. Thus, employees cannot loseany pay or benefits for the exercise ofa right conferred by the RTK Law.


A. Civil PenaltiesFailure to comply with obligations im-posed by the Public Health Law couldsubject an employer to a civil penalty ofup to $1,000. Failure to comply withobligations imposed by the Labor Lawcould subject an employer to a civil pen-alty of up to $10,000.

Right-To-Know Law • Page 3Revised 2/14

B. Criminal PenaltiesAn intentional violation of the PublicHealth Law portions of the RTK Law couldresult in imprisonment for up to one yearand a fine of up to $2,000.

An intentional violation of the Labor Lawportions of the RTK Law could result ina misdemeanor conviction, punishablefor a first offense by a fine of up to $500,imprisonment for up to 30 days or both.Subsequent violations could result inmisdemeanor convictions, punishable bya fine of up to $1,000, imprisonment forup to 90 days or both.

V. Record-Keeping

The RTK Law requires employers to keeprecords of the names, addresses and so-cial security numbers of every employeewho handles or uses one or more sub-stances regulated by the federal Occupa-tional Safety and Health Administrationin its Subpart Z, Toxic and HazardousSubstances Regulations. Employers alsomust maintain records of which toxicsubstances were handled or used bywhich employee. The records must bemade available to the affected employeeor former employee, the employee's des-ignated physician or representative andthe Commissioner of Health. Further,the records must be kept for 40 years,and must be sent to the Department ofHealth if the employer ceases to do busi-ness in New York.

NIXON PEABODY LLP Right-To-Know Law • Page 4Revised 2/14


A. New York State Commissionerof HealthThe Public Health Law portions of theRTK Law are administered by the Bu-reau of Occupational Health, New YorkState Department of Health.

The address is:TROY Flanigan Square

547 River StreetRoom 230Troy, NY 12180-2186(866) 807-2130

B. State Department of LaborThe federal Occupational Safety andHealth Administration administers thefederal Hazard Communication Standard(which almost certainly preempts theRTK Law for private employers).

For public employees, the Labor Law por-tions of the RTK Law are administeredby the State Department of Labor, Pub-lic Employee Safety and Health Division.Below is a list of offices maintained bythe Division in various locations.

C. State Attorney GeneralThe State Attorney General is responsiblefor enforcement through court proceed-ings of employer obligations created bythe RTK Law. Information may be ob-tained from the New York State Depart-ment of Law, Environmental ProtectionBureau.

The address is:ALBANY The Capitol

Albany, NY 12224-0341(518) 474-8096

ALBANY State Office Campus (518) 457-5508Bldg. 12, Room 15812240

BINGHAMTON 44 Hawley Street, Room 901 (607) 721-821113901




SYRACUSE 450 South Salina Street, Room 202 (315) 479-321213202

UTICA 207 Genesee Street (315) 793-225813501

WHITE PLAINS 120 Bloomingdale Road, Room 255 (914) 997-951010605

NIXON PEABODY LLP

I. Introduction

In 1983, the State courts declined to pro-tect whistleblowers from retaliation. Theyinsisted that creation of such a signifi-cant new right was solely within thepower of the State Legislature. In re-sponse, the Legislature enacted theWhistleblower Law effective September 1,1984. It prohibits employer retaliationagainst employees for disclosure of or re-fusal to participate in certain illegal acts.*

In 2002, the Legislature amended theWhistleblower Law to extend additionalprotections to health care employees whoreport employer activities, policies orpractices that the employee believes con-stitute improper quality of patient care.

II. Coverage

The Law covers both public** and pri-vate employers. The Whistleblower Lawis applicable to private employers who em-ploy one or more employees.

The health care provisions of the Lawapply to any entity that (i) provideshealth care services in a facility licensedunder Article 28 or Article 36 of the pub-lic health law, or in a public or privateschool or university setting; (ii) provides

Whistleblower Law • Page 1Revised 2/07

* Other laws, such as the State Labor Law, federal Occupational Safety and Health Act, federalFalse Claims Act, and federal Energy Reorganization Act, protect whistleblowers from retalia-tion for exercise of their right to report or object to violations of those laws. The federal Sarbanes-Oxley Act protects employees of publicly traded companies who lawfully disclose informationrelating to employer conduct which the employee reasonably believes to violate the federalcriminal statutes prohibiting mail, wire, bank or securities fraud, any rule or regulation of theSecurities and Exchange Commission (“SEC”), or any provision of federal law relating to fraudagainst shareholders. Thus, employers should check the specific statute allegedly violated todetermine whether whistleblowers are protected by such statute as well as the StateWhistleblower Law.** The Whistleblower Law’s protection of public employees is beyond the scope of this guide. Publicemployers should refer to Section 75-b of the Civil Service Law for a description of such protection.

CHAPTER 7 - WHISTLEBLOWER LAW

health care services under the mentalhygiene or corrections law; or (iii) is reg-istered with the Department of Educa-tion pursuant to section 6808 of the edu-cation law (which applies to pharmaciesand certain other entities that deal withdrugs, prescriptions or poisons).

III. Statute

A. Private Employee RightsTo protect whistleblowers, the Law pro-hibits retaliatory action against an em-ployee because the employee exercises:(1) the right to disclose or threaten todisclose illegal activity which creates aspecific and substantial danger to pub-lic health or safety, or which constituteshealth care fraud; (2) the right to provideinformation to a public body during apending inquiry into such illegal activ-ity; or (3) the right to object to or refuseto participate in such illegal activity.

The health care provisions of the Lawprohibit retaliatory actions against em-ployees who (1) disclose or threaten todisclose an activity, policy or practice thatthe employee, in good faith, reasonablybelieves constitutes improper quality ofpatient care; or (2) object to, or refuse toparticipate in, any such activity, policyor practice.

NIXON PEABODY LLP

closure to either a supervisor or publicbody. Supervisor means anyone who hasauthority to direct and control the workperformance of the affected employee orwho has managerial authority to take cor-rective action regarding the violation.Public body includes any popularlyelected governmental body or any mem-ber or employee thereof. It also includesthe judiciary, juries, law enforcement of-ficials and administrative agencies.

In addition to the above factors, protec-tion of the right to initiate disclosure to apublic body requires the existence of afourth factor. Before initiating disclosureto a public body, the employee must bringthe violation to the attention of a super-visor and afford the employer a reason-able opportunity to correct the violation.

The health care provisions of the Lawhave similar requirements. Theemployee must make the disclosure, orthreat to disclose, to a supervisor or apublic body. To qualify for protection,even for disclosures to a public body,the employee first must bring theimproper quality of patient care to theattention of a supervisor, and allow theemployer a reasonable opportunity tocorrect the activity, policy, or practice atissue. The employee may skip this stepwhen making a protected disclosure ifthe practice presents an imminentthreat to public health or safety, or thehealth of a specific patient, and theemployee reasonably believes, in goodfaith, that reporting to a supervisorwould not result in corrective action.

C. Private Employer RightsEven if employees exercise their statutoryrights, employers may still make adverseemployment decisions if they can dem-onstrate that the decisions were moti-

Whistleblower Law • Page 2Revised 2/04

“Improper quality of patient care” means,with respect to patient care, anemployer’s practice, procedure, action, orfailure to act which violates any law, rule,regulation, or declaratory ruling adoptedpursuant to law, where the violation re-lates to matters which may present a sub-stantial and specific danger to publichealth or safety or a significant threat tothe health of a specific patient.

B. Prerequisite to Employee RightsThe Law’s prohibition against such re-taliation, however, exists only when cer-tain factors are present. First, the em-ployee must disclose, threaten to disclose,object to or refuse to participate in anactual violation of a federal, state or locallaw, rule or regulation.

Second, the violation must create andpresent a substantial and specific dan-ger to the public health and safety. Be-cause the Law does not define a “sub-stantial and specific danger” or the “pub-lic health and safety,” the scope of theseterms is unclear. At one extreme is theemployee who discloses illegal billingpractices. Because such activity couldnot be characterized as involving a sub-stantial and specific danger to the pub-lic health and safety, the statutory pro-tection is unavailable. This was the rul-ing of the New York Court of Appeals inRemba v. Federation Employment &Guidance Serv., 76 N.Y. 2d 801 (1990).At the other extreme, is the employee whodiscloses the marketing of an adulteratedfood product in violation of food and druglaws. Because such a violation could cre-ate a specific and substantial danger tothe public health and safety, it probablywould be protected by the Act.

Third, the employee must disclose to theproper party. The Law protects only dis-

NIXON PEABODY LLP Whistleblower Law • Page 3Revised 2/04

* The waiver provision probably is unconstitutional to the extent it waives employees’federal remedies. Further, there is a question whether pursuit of a federal right barssubsequent commencement of a whistleblower lawsuit.

vated by reasons other than retaliationfor employees’ exercise of their statutoryrights. Moreover, if an employee com-mences a Whistleblower Law action with-out any basis, a court may award an em-ployer reasonable attorney’s fees andother court costs.

D. Statute of LimitationsTo remedy a Whistleblower Law violation,an employee must begin an action withinone year after the retaliatory action. Withrespect to the health care provisions ofthe Law, the statute of limitations is twoyears.


A. Private ActionEmployees must go to court to startwhistleblower actions under the Law, in-cluding its healthcare provisions. If theaction is successful, the remedies in-clude: an injunction to restrain the vio-lation; reinstatement with full fringe ben-efits and seniority rights; reinstatementto the same or equivalent position; com-pensation for lost wages, benefits andother remuneration; and reasonablecosts, disbursements and attorneys’ fees.

If the court finds that an employer actedin bad faith in retaliating against an em-ployee for reporting improper quality ofpatient care, in addition to granting theremedies listed above, the court has dis-cretion to assess a civil penalty, not toexceed $10,000, to be paid to the State’sImproving Quality of Patient Care Fund.

B. ExclusivityAlthough the Law does not prohibit awhistleblower from pursuing any otherremedies, it does provide that by insti-tuting a whistleblower lawsuit, the em-ployee waives any other remedies.*

C. PreemptionIf the whistleblowing is arguably pro-tected by federal laws, such as the Occu-pational Safety and Health Act, theWhistleblower Law may interfere with thefederal law, and therefore, may be pre-empted and unenforceable.

V. Record-Keeping

The Whistleblower Law does not have anyspecific record-keeping obligations.


The Whistleblower Law is not adminis-tered by a State agency.

NIXON PEABODY LLP

CHAPTER 8 - SAFETY AND HEALTH LAW

I. Introduction

New York generally requires employersto construct, equip and operate theirwork places in a manner which providesreasonable protection to the safety andhealth of their employees.

II. Coverage**

Generally, broad safety and health obli-gations apply to work places subject tothe State Labor Law, including factories,foundries, mercantile and other estab-lishments, places of public assembly, andpublic buildings. There are additionalspecific obligations which apply to theseworkplaces and to others, such as mines,tunnels, and quarries, and sites wherecompressed air and explosives are used.When the State law seeks to regulateemployer conduct which is also regulatedby federal law, however, the State law isoften preempted and unenforceable. Forexample, if hazards regulated by Statelaw are also covered by federal Occupa-tional Safety and Health Administration(“OSHA”) standards, the State law is pre-empted and unenforceable. Similarly, ifState law requires employers to grant ordeny a condition of employment only towomen, it may be preempted and unen-forceable because it requires an employerto violate the prohibitions against sex dis-crimination contained in Title VII of thefederal Civil Rights Act of 1964. Thus,employers covered by the safety andhealth provisions of the State Labor Lawshould ascertain whether any federalOSHA standards apply and, if so,whether the State Law is preempted.

Safety And Health Law • Page 11994 Edition

** This Section does not address the Labor Law’s right-to-know provisions, which areaddressed in the Right-to-Know Law Section of this guide. State safety and healthlaws covering public employees are beyond the scope of this guide.

III. Statute

A. Employer DutiesEmployers have a duty to construct,equip and operate their work places in amanner which provides reasonable pro-tection to the health and safety of theiremployees. They also have a duty toplace, operate, guard and light all ma-chinery and equipment so as to providereasonable protection to their employees.In addition, proper lighting, heat andventilation, washrooms, toilets, drinkingwater, dressing rooms, and waste recep-tacles are required of all employers. Spe-cial protections apply to elevator andswitchboard operators, and to employ-ees working in the vicinity of high volt-age power lines. Employees must not bepermitted to bring food into areas wherehazardous substances are present. Exitsigns and marking of glass windows isalso required. None of these obligationsextend to volunteers working gratuitouslyat a work site.

The specific obligations of employers en-gaged in building construction, mainte-nance, repair and demolition work, andof employers operating foundries, mines,tunnels and quarries, and working withcompressed air and explosives, are toonumerous and detailed to mention.Employers should review the table of con-tents of the Industrial Code, establishedby the New York Industrial Board of Ap-peals, to determine the requirements ap-plicable to their activities.

NIXON PEABODY LLP

B. Employee ExaminationsEmployers may not require an employeeor prospective employee to pay for a physi-cal examination that is required as a con-dition of original employment. In addi-tion, employers may not require an em-ployee to pay for a medical examinationor health certificate as a condition of con-tinued employment (e.g., an employermay not require an employee to furnisha doctor’s note at the employee’s cost asa condition of returning to work after ahealth-related absence) where such ex-amination or certificate is not requiredby state, federal or local law. The aboverule does not apply if the employee is cov-ered by health insurance that pays forthe examination or certificate, or if theemployer provides, at no cost to the em-ployee, qualified medical personnel toconduct the examination, or if the em-ployee pays for the examination or cer-tificate and is later reimbursed by theemployer pursuant to a collective bar-gaining agreement. A female employeeor prospective female employee has theright to have a female doctor conduct theexam or to have a female present duringan examination by a male doctor. Noticeof this right must be posted by employ-ers who require physical examinations.

In general, employers cannot require em-ployees to be fingerprinted as a condi-tion of securing employment or continu-ing employment. This prohibition doesnot apply to government or hospital em-ployees or security guards.

C. Prohibited Retaliation AgainstEmployeesAn employer may not discharge, penal-ize, or discriminate against an employeebecause the employee has made a com-plaint to the employer or to the Commis-sioner of Labor that the employer has vio-

lated any provision of the State LaborLaw, including its safety and health pro-visions, or because the employee hascaused a proceeding to be instituted un-der the State Labor Law, or because theemployee is about to testify in such a pro-ceeding.


A. GeneralThe Commissioner of Labor may inspecta workplace and post a notice warningall persons of danger if the Commissionerfinds any machinery or an area in a dan-gerous condition. The notice will pro-hibit use of the machinery or occupancyof the area until the dangerous condi-tion is corrected and the notice removed,or until 60 days have passed, whicheveris shorter. The State Attorney Generalalso may begin a proceeding to enjointhe use of the machinery or area affectedand the employer may file a petition withthe Board to review the validity and rea-sonableness of the Commissioner’s no-tice.

Further, a safety and health violation ofthe Labor Law, or of the IndustrialBoard’s and Commissioner’s rules andregulations, can result in a misdemeanorconviction.

B. Retaliation Against EmployeesAn employee may sue any employer orperson for violating the prohibition onretaliation. The employee must bringsuit within two years of the violation andmust serve notice upon the Attorney Gen-eral. Relief can include rehire or rein-statement of the employee with restora-tion of seniority, payment of lost com-pensation, damages, and reasonable at-torneys’ fees.

Safety And Health Law • Page 2Revised 2/05

NIXON PEABODY LLP Safety And Health Law • Page 3Revised 2/14


The agencies which administer the safetyand health provisions of the Labor Laware the State Department of Labor andthe State Industrial Board of Appeals.

The State Attorney General is responsiblefor any court proceedings to prosecuteemployer violations of the safety andhealth provisions of the State Labor Law.Information may be obtained from theNew York State Department of Law, En-vironmental Protection Bureau. The ad-dress is:

ALBANY The CapitolAlbany, NY 12224-0341(518) 474-8096

The Commissioner may also assess a civilpenalty of not less than $200 and notmore than $2,000 against an employerwho violates the prohibition on retalia-tion against employees.

V. Record-Keeping

The safety and health provisions of theState Labor Law do not create any broadrecord-keeping obligations. However, theLaw does obligate employers to retain cer-tain records created for specific purposes,such as the transfer of explosives, workin compressed air, radiation protection,etc. To determine whether record-keep-ing obligations are created for particularwork places, employers should review theapplicable provisions of the Labor Lawand Industrial Code issued by the Board.

STATE DEPARTMENT OF LABOR:ALBANY Industry Inspection, (518) 457-4411

State Campus, Room 15712240

BINGHAMTON 44 Hawley Street, 9th Floor (607) 721-821113901-4409

BUFFALO 65 Court Street, Room 400, 14202 (716) 847-7134


NEW YORK 75 Varick Street, 10013 (212) 775-3564


SYRACUSE 450 South Salina Street (315) 479-321013202

UTICA 207 Genesee Street, 13501 (315) 793-2316


STATE INDUSTRIAL BOARD OF APPEALS:ALBANY State Office Building Campus (518) 474-4785

Building 12, Room 11620th Floor, 12240

NIXON PEABODY LLP Workers' Compensation Law • Page 11994 Edition

I. Introduction

The Workers’ Compensation Law pro-vides cash benefits and medical care toemployees who incur a work-related in-jury or sickness. If death results, thebenefits are then paid to the dependents.In addition to providing a relatively quickand simple system for workers to obtainbenefits, workers’ compensation also pro-tects employers from potential civil liabil-ity, including damages for pain and suf-fering or for the full amount of lost wages.

The Workers’ Compensation Board(“Board”), which is part of the Depart-ment of Labor, is responsible for theadministration of the Workers’ Compen-sation Law.

II. Coverage

The Workers’ Compensation Law coverspersons or employees who are engagedin what is classified as hazardous em-ployment. Originally, this designationwas intended to cover employment thatactually was hazardous. Over the years,however, the statute has been amendedto cover virtually all employees in em-ployment in New York State. As a gen-eral rule, an employer who employs oneor more employees in a trade, businessor occupation must provide workers’ com-pensation coverage.

An “employer” includes a person, part-nership, association, corporation, the le-gal representatives of a deceased em-ployer, or the receiver or trustee of a per-son, partnership, association or corpo-ration having one or more people in em-ployment. “Employment” includes em-ployment in a trade, business or occu-

pation carried on by an employer for pe-cuniary gain. An “employee” is a personengaged in a hazardous employment.

An employer is not required to cover anumber of categories of employees, al-though the employer may do so volun-tarily. Non-mandatory categories includethe following:

1. Clergy and others engaged in ateaching or non-manual capacity fora religious, charitable or educationalinstitution;2. Municipal and other political sub-division employees not engaged inhazardous employment;3. New York City uniformed sanita-tion workers, firefighters, and policeofficers;4. Members of supervised non-profitamateur athletic activity who are notalso employed by an employer par-ticipating in the athletic activity;5. Babysitters;6. Minors who are 14 years of age orolder who are engaged in casual em-ployment of yard or house work in aone family owner-occupied residenceor a non-profit, non-commercial or-ganization, provided that power-driven machines are not used by theminor;7. Any person engaged in yard work,house work, repairing, or painting inor around a one family owner-occu-pied residence;8. Farm laborers whose employer hasa total payroll of less than $1,200 inthe preceding calendar year beginningApril 1st;9. Longshoremen or harbor workerscovered by federal Longshoremen’sand Harbor Workers’ Act;10. Federal employees and railroademployees;

CHAPTER 9 - WORKERS' COMPENSATION LAW

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of an employee’s work is hazardous, thatemployee will be entitled to benefits.

Employees receive benefits for disabilityor death which results from an injurythat arises out of and in the course ofemployment. Work-related mental stressis not compensable if it is a direct resultof a lawful, good faith personnel decisionmade by the employer involving a disci-plinary action, work evaluation, jobtransfer, or termination. A disease or in-fection resulting naturally and unavoid-ably from employment is also compen-sational. The injury or death must becaused by the work, and pre-existing con-ditions are not necessarily covered merelybecause the work aggravates the condi-tion. To be compensable, the pre-exist-ing condition must be dormant and non-disabling, and then some distinctive fea-ture of the employment must cause thedisability by activating the condition.

Workers’ compensation benefits are pay-able without regard to whether the em-ployee was negligent in causing the in-jury or death. No compensation is pay-able, however, if: (1) the injury was causedsolely by the injured employee’s intoxi-cation from alcohol or a controlled sub-stance while on duty; (2) the injury wascaused by the willful intention of the in-jured employee to bring about the injuryor death of himself or another; or (3) theinjury was sustained in or caused by vol-untary participation in off-duty athleticactivity not constituting a part of theemployee’s work-related duties. Off-dutyathletic activities are compensable, how-ever*/, if the employer requires the em-ployee to participate in the off-duty ath-

Workers' Compensation Law • Page 2Revised 2/07

*/ For example, if an employer requires or permits its employees to play on a company softball team andsponsors the team by buying the equipment and supplies, any injuries the employees receive clearly willbe covered. However, if two employees decide to play tennis after work and the employer has not re-quired, encouraged or sponsored the event, any injuries the employees receive will not be covered byworkers’ compensation.

11. Auxiliary police;12. An executive officer who holds (ortwo executive officers who between themhold) all of the stock of a corporationand all offices of the corporation;13. Licensed real estate brokers andsales associates, licensed insuranceagents and brokers, and media salesrepresentatives who sell or renew sub-scriptions or advertising space for maga-zines, under limited circumstanceswhere they are treated as independentcontractors and substantially all of theirremuneration is by commission.14. Domestics employed by the sameemployer for less than 40 hours a week.

All public safety workers are covered formedical care and treatment when theyare exposed to blood or bodily fluids ofothers during the course of employment,including diagnosis, recommended medi-cine and other medical care needed toascertain whether the worker was ex-posed to or contracted a communicabledisease. For purposes of this requirementonly, "public safety workers" include butare not limited to emergency medicaltechnicians, drivers and medical observ-ers, police officers, and other employeesand volunteers who are part of an orga-nized group such as a rescue squad, po-lice department, correctional facility, firedepartment, fire company, or ambulancecorps.

An employer whose business is classi-fied as hazardous is required to cover allof the employees in the business, eventhose whose work may not be hazard-ous. Also, even though an employer’sbusiness is not hazardous, if the nature

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cific provisions governing when suchclaims will be compensated. These pro-visions apply not to the traumatic or in-stant loss of hearing, but to the slowerprocess of hearing loss caused by expo-sure to industrial noise.

As is the case with occupational diseases,the last employer in whose employmentthe employee was exposed to harmfulnoise generally is liable for the total com-pensation due to the employee, eventhough employment with other employ-ers may have contributed to the hearingloss. Employers may obtain apportion-ment of the compensation. To do so, anemployer must conduct a pre-placementexamination which shows that the em-ployee has pre-existing hearing losswhich may be due to prior employmentin which the employee was exposed toharmful industrial noise. The employermust provide written notice of these re-sults to all earlier employers. This no-tice must advise the earlier employersthat if a claim is filed and an award ismade, the prior employers may be re-quired to reimburse the employer for anappropriate portion of the award basedon the hearing loss caused by the prioremployment.

In 2006, the State Legislature amendedthe Workers’ Compensation law to in-clude coverage of employees and volun-teers who became ill because of their par-ticipation in the World Trade Center res-cue, recovery, and cleanup operationsafter the terrorist attacks on September11, 2001. The amendment covers certaindiseases and conditions resulting fromhazardous exposure during participationin the operations. To file a claim, anemployee or volunteer must register withthe Board on a pre-approved form by Sep-tember 11, 2014 and meet specific no-

letic activity, compensates the employeefor doing so, or otherwise sponsors theactivity.

A person disabled by an occupationaldisease receives the same benefits assomeone who has incurred an on-the-job injury. The employee’s disability ordeath must be caused by one of the dis-eases listed in the statute. Even if theemployee has a listed disease, benefitswill be payable only if the disease resultsfrom the ordinary and generally recog-nized risks incident to the particular em-ployment in question. It must be causedby the employment and result from theparticular job the employee performs.

In short, there must be a causal connec-tion between the disease and a feature ofthe employee’s job.

If an employee becomes disabled due toan occupational disease, the employeemay recover the total compensation duefrom the employer who last employed theemployee in the job which caused the oc-cupational disease. In most cases, how-ever, if the disease was contracted whilethe employee was in the employment ofa prior employer, the employer who be-comes liable for the total compensationmay appeal to the Board for an appor-tionment of the compensation among theemployers who are deemed responsible.The apportionment is based on the pe-riod of time the employee worked for eachemployer. A hearing must be held andnotice must be given to all prior employ-ers alleged to be liable for a portion ofthe compensation.

In response to problems created by com-pensation for claims for loss of hearingdue to exposure to industrial noise, theNew York State Legislature enacted spe-

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tice of claim requirements set out by thelaw. For the most part, the proceduresnormally applied to resolution of work-ers’ compensation claims will then ap-ply. Employers and insurance carrierswill be liable for claims for qualifying con-ditions that are causally related to theemployee’s participation in World TradeCenter rescue, recovery, or cleanup op-erations between September 11, 2001 andSeptember 12, 2002. Special compen-sation rates apply to claims by employ-ees of private voluntary hospitals whoparticipated in World Trade Center res-cue operations immediately followingSeptember 11, 2001. The State unin-sured employers’ fund will be used to payfor eligible benefit claims from volunteers.

III. Statute

A. CompensationThe level of benefits available to an em-ployee depends upon a determination asto which of the four basic categories ofdisability the employee falls within. Thecategories and concomitant benefits areas follows:

1. Permanent Total Disability: if theemployee has permanently and totallylost wage earning capacity. Sixty-sixand two-thirds percent of theemployee’s average weekly wages, upto a statutory maximum, are paid ascompensation during the entire pe-riod of disability.

2. Permanent Partial Disability: if theemployee has permanently lost onlypartial wage earning capacity. Sixty-six and two-thirds percent (66 2/3%)of the difference between theemployee’s average weekly wages, upto a statutory maximum, and theemployee’s earning capacity after the

disability, are payable up to a maxi-mum length of time set by statute. Themaximum length of time ranges from15 to 312 weeks for loss of certainbody parts and from 225 weeks to 525weeks for other types of permanentpartial disabilities, depending uponthe extent of loss of wage-earning ca-pacity. There will be a presumptionthat medical services shall continuepast these latter time periods unlessthe carrier or other insurer can showthat continuation is not warranted.A special category of permanent par-tial disability exists for loss of sight,loss of hearing, or loss of a member ofthe body or its use. Compensation ofsixty-six and two-thirds percent of theaverage weekly wages, up to a statu-tory maximum, is payable for thesespecified disabilities and payment islimited to a fixed number of weeks.

3. Temporary Total Disability: if theemployee has temporarily and totallylost wage earning capacity. Sixty-sixand two-thirds percent of the averageweekly wages, up to a statutory maxi-mum, are payable as long as the dis-ability exists.

4. Temporary Partial Disability: if theemployee has temporarily lost onlypart of wage earning capacity. Two-thirds of the difference between theinjured employee’s average weeklywages before the accident and theemployee's wage earning capacity af-ter the accident, up to a statutorymaximum, are payable as long as thedisability exists.

In the case of either a permanent or tem-porary partial disability where the con-tinuance of the disability and of futureearning capacity cannot be ascertained


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with certainty, the Board may approve anon-schedule adjustment agreed to be-tween the claimant and employer or in-surance carrier. This settlement may bein the form of one or more lump sum orperiodic payments.

Additionally, the Board may award com-pensation for two categories of disfigure-ment. The first is serious facial or headdisfigurement, including a disfigurementthat is partially in the facial area and ex-tends down the neck. The maximumaward for a serious facial or head disfig-urement is $20,000. The second categoryapplies if the earning capacity of an em-ployee has be en or may in the future beimpaired. In such cases, the Board alsomay award compensation for any seriousdisfigurement in the region above wherethe collar bone and the sternum meet, upto and including the region of the muscleswhich run from the neck behind the eardown to the sternum. No award for thesetwo categories of disfigurement shall ex-ceed $20,000 in the aggregate.

The Workers’ Compensation Law estab-lishes maximum compensation benefits.

The compensation for either permanentor temporary total or partial disability dueto an accident or an occupational diseaseoccurring 1) on or after July 1, 2007 maynot exceed $500 per week; 2) on or afterJuly 1, 2008 may not exceed $550 perweek; 3) on or after July 1, 2009 may notexceed $600 per week; and 4) on or afterJuly 1, 2010 and thereafter may not ex-ceed 2/3 of the New York State averageweekly wage as set by the Commissionerof Labor for the year in which the disabil-ity is reported. The minimum compensa-tion for all disabilities arising betweenMay 1, 2007 and May 1, 2013 will be $100per week, or the amount of the employee’s

weekly wages, whichever is less. The mini-mum compensation for all disabilities aris-ing on or after May 1, 2013 will be $150per week, or the amount of the employee’sweekly wages, whichever is less.

The compensation received, when com-bined with decreased earnings or earningcapacity, may not exceed the amount ofwages which the employee was receivingat the time the injury occurred.

Wage replacement benefits are allowedfrom the date of disability if that disabil-ity exists for more than 14 days. If thedisability exists for less than 15 days, nocompensation for wage replacement is al-lowed for the first seven days. Additionalcompensation for rehabilitation may beavailable to an employee who is or maybe expected to be totally or partially inca-pacitated and who, under the direction ofthe State Education Department, is be-ing rendered fit to engage in remunera-tive occupation.

B. Medical ExpensesMedical care and treatment is provided toan employee from the first day of disabil-ity, for as long as is necessary to treat thecovered injury. The employer pays thedoctor, hospital or other medical providerdirectly, and the claimant may not bepursued for payment. The payment ofmedical expenses is not the payment ofcompensation.

In addition to surgical, dental, optomet-ric, nursing and hospital expenses, medi-cal expenses also include expenses forprosthetic devices, artificial eyes, eye-glasses and any other device or appliancesnecessary to replace or support a part ofthe body as a result of the injury and dur-ing the recovery process.



With the exception of emergency medi-cal care by a licensed doctor or treatmentof a hospital patient by a licensed staffdoctor, only doctors authorized to treatworkers’ compensation patients may re-ceive payment. An injured employee gen-erally may select any authorized doctorto provide medical care, and may trans-fer his treatment to another authorizeddoctor during the course of medical care.

Nonetheless, an employer or carrier mayrequire a claimant to obtain all prescribednon-emergency medicine from a phar-macy with which it has contracted pro-vided certain notice and availability re-quirements are met. A carrier may alsorequire a claimant to undergo non-emer-gency diagnostic tests, X-ray examina-tions, MRIs, and other radiological ex-aminations and tests with a provider orat a facility affiliated with a network ornetworks with which the carrier has con-tracted provided that certain notice andavailability requirements are met.

The claimant's physician must give no-tice to the employer and the Chair of anymedical or surgical treatment in order toclaim payment. The employer, the car-rier, and the claimant each have the rightto have the claimant undergo an inde-pendent medical examination by a Board-authorized physician or health profes-sional at a medical facility convenient tothe claimant and in the presence of theclaimant's physician.

Where a specialist consultation, surgicaloperation, physiotherapeutic procedure,occupational therapy, special diagnosticlaboratory test or x-ray examination willcost more than $1,000, prior authoriza-tion for the treatment or test must be ob-tained from the employer or the Board.An employer’s denial of authorization

must be reasonable and based on a con-flicting second opinion of a Board-autho-rized physician. If an employer does notrespond to an employee’s request for au-thorization within thirty days of receiv-ing the request, no authorization is re-quired. Prior authorization is not re-quired for emergency treatment.

A fee for medical treatment and care maynot be less than that set forth in the mini-mum fee schedule prepared by the Chairof the Board. An employer may chal-lenge the reasonableness of medical ex-penses, and if the parties fail to agree onthe value of medical aid rendered, the is-sue may be submitted to a dispute reso-lution system.

Special provisions of the Workers’ Com-pensation Law allow non-medical doctorsto render care for compensational inju-ries. A duly authorized, licensed podia-trist may render required care for inju-ries to the foot or conditions resultingfrom such an injury. When care is re-quired for an injury which consists solelyof a condition that lawfully may be treatedby a chiropractor, an authorized chiro-practor licensed in New York may renderthat care. Finally, upon the referral ofan authorized physician, a duly licensed,registered and authorized psychologistmay render psychological care within thescope of the psychologist’s specializedtraining and qualifications.

C. Death BenefitsDeath benefits are awarded in all caseswhere covered injuries cause death.

The surviving spouse and children and,possibly, dependent siblings and blindand disabled grandchildren of the de-ceased employee are entitled to receivedeath benefit awards. Legally adopted


children may receive benefits as well. Ifthe decedent had no such dependents, alump sum of $50,000 will be paid to thesurviving parents, if any, or to thedecedent’s estate. Domestic partners arenot eligible to receive benefits, unless theemployee died as a result of the terroristattacks that occurred on September 11,2001.

The aggregate death benefits providedmay not exceed two-thirds of thedecedent’s average weekly wage, subjectto the maximum and minimum benefitrates payable for a total disability.

The benefits to a surviving spouse, withor without children, are subject to reduc-tion by a percentage of the spouse’s shareof social security survivor’s insurancebenefits. The percentage of reductiondepends on the decedent’s average weeklywage and varies from five percent to 50percent. The reduction is made with theBoard’s award, and is not changed ifthere is an increase in social security ben-efits received.

Death benefits once awarded to a spousecontinue for life unless the spouse re-marries. If that occurs, the spouse re-ceives two years of benefits in a lump sum.

The Workers’ Compensation Law pro-vides that compensation will be payablefor reasonable funeral expenses.

D. MinorsAt the request of a person legally respon-sible for a minor claimant, the Board, af-ter a hearing, may direct that payment bemade to the legally responsible person, tobe used for the benefit of the minor.

If an employer illegally employs a minorwho becomes disabled, amounts payable

for compensation and death benefits willbe doubled. The employer alone, and notthe insurance carrier, is liable for the in-creased compensation.

E. Other BenefitsNo benefits, savings or insurance of theinjured employee are considered in de-termining the compensation or benefitsto be paid.

F. Preferred Provider OrganizationsIn a continuing shift towards managedcare, in 1996 the State legislature au-thorized certain carriers and self-insuredemployers and the state insurance fundto contract with a "preferred provider or-ganization" (PPO) to provide medical ser-vices under the Workers' CompensationLaw. The contracting carrier or employermust not have any financial interest inthe PPO. If its employees are organized,the employer must collectively bargainthe use and implementation of the PPO.

All such PPOs must be licensed by theState Department of Health. Employeesmay seek treatment outside the PPO 30days after their first PPO visit, but em-ployers may then also require a secondopinion from within the PPO. TheBoard's medical fee schedule will not ap-ply to services rendered by the PPO.

G. Workplace Safety and Loss PreventionProgramIn 1996, the State legislature also cre-ated an elaborate workplace safety andloss prevention program. The programprovides monetary incentives in the formof premium credits for employers whoimplement certain safety measures andmaintain a lower experience rating. In2007, identical incentives were enactedfor employers who create drug and alco-hol prevention or return to work pro-

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grams in conformity with regulations.Employers whose most recent annualpayroll exceeds $800,000 and most re-cent experience rating exceeds 1.2, mustundergo a mandatory workplace safetyconsultation and evaluation. The Com-missioner will notify affected employersof this requirement.

H. No DiscriminationThe Workers' Compensation Law allowsemployees to seek workers’ compensationbenefits without fear of reprisals fromtheir employers. If the Board finds anemployer has discriminated against anemployee because the employee claimedor attempted to claim workers’ compen-sation or has testified in a workers’ com-pensation proceeding, the Board may im-pose a penalty and attorneys’ fees againstthe employer, and can order reinstate-ment of and payment of lost wages to anemployee.

Employers also may not discriminateagainst a job applicant who has filed foror received workers’ compensation ben-efits in the past or because the applicantis an injured veteran. Employers maynot inquire into a job applicant’s work-ers’ compensation history or considerwhether the job applicant had filed foror received benefits in the past for thepurpose of assessing the applicant’s fit-ness or capability for employment. Thisrestriction prohibits inquiries made of theBoard and of former employers, as wellas inquiries of the applicant. An indi-vidual aggrieved under this rule may suefor damages, including reasonable attor-neys’ fees.

Any complaint alleging an unlawful dis-criminatory practice under the Workers’Compensation Law must be filed withintwo years of the commission of such prac-

tice. All penalties, compensation, fees,and allowances allowed under these pro-visions must be paid solely by the em-ployer.

In 2003, the Legislature further amendedthe Labor Law to provide that it is un-lawful for an employer to refuse to hire,employ or license an employee, or to dis-charge an employee from employment,in order to evade the employer’s legal dutyto provide workers’ compensation cover-age for that employee. Violation of thisprovision is a misdemeanor.

I. Procedures1. Notice of InjuryAn employee or employee representa-tive must give notice to the employerwithin 30 days after the alleged work-related injury or death. The noticemust be in writing and must include:(1) the employee’s name and address;(2) the time, place, nature and causeof the injury; and (3) the signature ofthe employee or of someone who signson the employee’s behalf.

If, as a result of an accident causingpersonal injuries, an employee re-quires medical treatment beyond or-dinary first aid, or requires more thantwo first aid treatments, or if the em-ployee is unable to perform regularduties for one day beyond the day orshift in which he or she receives theinjury, the employer, or its designatedagent must file a report with theBoard and with the employer’s insur-ance carrier within 10 days after theaccident. This same requirement ap-plies if an employee develops occupa-tional disease in the course of employ-ment. The report must be made on aform that states the employer’s busi-ness; the employer’s business loca-


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tion; the injured employee’s name,address and occupation; the time,nature and cause of the injury; andother information as required on theform provided by the Board. In addi-tion to the injuries and occupationaldiseases discussed above, the em-ployer must file the same report forany accident resulting in any othertype of injury if ordered to do so bythe Board.

An employer who refuses or neglectsto make the required injury reportsor keep the required records is guiltyof a misdemeanor which is punish-able by a fine of up to $1,000 andmay also be liable for a penalty of upto $2,500 imposed by the Board.

2. Filing of ClaimA claim for compensation must besubmitted to either the employer orChair after the first seven days of dis-ability or at any time after theemployee’s death.

a. Uncontested CaseIn cases where no controversy ex-ists as to the payment of compen-sation, the compensation must bepaid periodically and promptly, aswages are paid. The compensationmust be paid directly to the per-son entitled to receive it as it ac-crues and without waiting for theBoard’s award. The first paymentis due 14 days after the disabilitycommences, and must be paidwithin 18 days. Compensation ispayable bi-weekly unless the Boardfinds another payment period ap-propriate. An award of compensa-tion for permanent partial disabil-ity must be paid in a lump sumupon request of the employee.


When compensation payments arestopped for any reason, the em-ployer or insurance carrier mustsend a form notice to the Chairwithin 16 days. The notice muststate the following: (1) name of theinjured employee or the principaldependent; (2) the date of the acci-dent; (3) the date to which com-pensation has been paid; and (4)how much compensation has beenpaid.

An employer who is unsure of itsliability for a claim of compensa-tion may pay compensation andmake payments for prescribedmedicine for up to one year, with-out having its payments consideredan admission of liability. The em-ployer must submit a notice of tem-porary compensation to the em-ployee and the Board on a formprescribed by the Board. The em-ployer must also, within five daysof its last payment, notify the em-ployee and Board when it ceasestemporary payments. Failure togive such notice within one yearwill convert the payments into anadmission of liability.

b. Contested CaseIn a contested case, the employermust file a form notice with theChair giving the claimant’s name,employer’s name, accident dateand why compensation is not be-ing paid. The notice must be filedno later than 18 days after disabil-ity or within 10 days after the em-ployer acquires knowledge of thealleged accident, whichever is later.

If the Board notifies the employeror carrier that the case has been

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indexed against the employer, andthe carrier or employer decides tocontest the case, the carrier or em-ployer must file a notice of contro-versy with the Chair within 25 daysfrom the date the Board mailednotice that the case has been in-dexed.

Upon receipt of notice that com-pensation is being controverted, orthat payments have been stopped,the Chair immediately must makean investigation, have medical ex-aminations done or refer the caseto hearing to protect the rights ofboth parties. Either party may re-quest a hearing. Both parties alsoare entitled to be represented bycounsel and to present evidence atthe hearing.

(i) Pre-Hearing ConferencesAll parties are required to attenda pre-hearing conference beforea referee within 45 days afterthe notice of controversy and amedical report referencing aninjury is received by the Board.Where the claimant is repre-sented by counsel or by a li-censed representative, eachparty must file 10 days beforethe conference a specified con-ference statement, noting thespecific issues in dispute. If theclaimant is unrepresented, thecarrier must file such a state-ment. The referee or concilia-tor, the parties, and their rep-resentatives will attempt to re-solve certain procedural andfactual issues in the hearing.

At the conclusion of the con-ference, the referee/conciliator

will issue a written order. If allparties agree, the referee/con-ciliator may issue a decisionwhich shall constitute a deci-sion of the Board. If a claimantis unrepresented, this decisionwill not become final until ap-proved by the Chair of theBoard. An unrepresented claim-ant has an additional 10 daysafter receiving notice of Boardapproval to withdraw from theagreement. If the claimant doesnot withdraw, the agreementbecomes an award of the Board.If the claimant withdraws, theBoard will rescind the decisionand restore the case to the regu-lar hearing calendar process.

(ii) Conciliation ProcessClaims involving benefits withan expected duration of 52weeks or less will be transferredto a Board “conciliation process”designed to resolve such claimsmore quickly and informallythan the traditional hearingprocess. Uncontested claims in-volving temporary or minor in-juries, however, will be handledby motion only.

(iii) Agreements Between thePartiesAfter a claim has been filed, theclaimant and the employer orits carrier may enter into anagreement settling the compen-sation and other benefits duethe claimant or the claimant'sdependents. Insurance carriersare now required to make anoffer of settlement within cer-tain time limits imposed bystatute. Such agreements are


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sion. The appeal must be madewithin 30 days after the deci-sion has been served on theparties. The Appellate Divisionwill affirm the decision wherethere is substantial evidence tosupport the Board’s factual de-cision. There is no stay of pay-ment of the award during ap-peals to the Appellate Divisionor Court of Appeals.

An employer and the recognizedor certified exclusive bargainingrepresentative of its employeesmay include within their collec-tive bargaining agreement pro-visions to establish an alterna-tive dispute resolution systemto resolve claims arising underthe Workers' CompensationLaw.

3. Burden of ProofThe claimant has the burden of proof.There are, however, statutory pre-sumptions which are intended to easethe claimant’s burden of presentingand establishing a compensationalclaim. The presumptions are the fol-lowing:

1. That the claim comes within theprovisions of the Workers’ Compen-sation Law, that is, that the dis-ability or death is from an injuryarising out of and in the course ofemployment;2. That adequate notice was givento the employer;3. That the injury was not causedby the willful intention of the in-jured employee to bring about the


final and binding only if ap-proved by the Board.

(iv) AwardsThe statute provides that anaward will be made and filedwithin 30 days after the claimis submitted or the hearing isclosed. However, in practice,very few cases are decided in thistime frame.*/ An AdministrativeLaw Judge’s decision is the fi-nal award of the Board unlessa party files a timely applica-tion with the Board for reviewof the Administrative LawJudge’s decision. This appli-cation must be made within 30days after notice of the filing ofthe decision, and should statethe basis for the objection to theaward. The application will beassigned to a three-memberBoard panel. Within 30 daysafter notice that the Boardpanel has filed its decision withthe Secretary of the Board, anyparty may apply for full Boardreview. If the panel decisioncontained a dissent, other thana dissent seeking only to referthe case to an impartial special-ist, the full Board is required toreview the panel decision. Inall other instances, the fullBoard retains the discretionover whether or not to reviewthe panel decision. Appealsfrom a substantive decision ofthe Full Board or a Board panelmay be made to the Third De-partment of the Appellate Divi-

*/ The Chair may refer cases to a special "expedited hearing" procedure presided over by a specialreferee if (1) the issues in the case have not been resolved within one year after being raised beforethe Board; (2) multiple claims arise from the same accident or occurrence; (3) all parties agree to anexpedited hearing; (4) a notice of controversy is filed; or (5) the chair otherwise deems it necessary.

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necessary to evaluate, process, or settlea claim; and the claimant’s treating phy-sician or health care provider, where theinformation relates to compensability ofthe claim, reimbursement for treatment,or a waiver agreement. It is unlawful forany person to disclose Board workers'compensation records to a person who isnot lawfully entitled to receive them. Aknowing violation of this confidentialityprovision is a misdemeanor and can re-sult in a fine of no more than $1,000.The attorney general is authorized to seekan injunction to restrain further viola-tions of this provision.


A. Attorney’s Fees, CostsIf the court before which any proceed-ings for compensation have been broughtdetermines that the proceedings were notbrought on reasonable grounds, it mustassess costs against the party whobrought the proceedings.

Attorney’s fees must be approved by theBoard and are deductible from theaward. Whenever an award is made to aclaimant who is represented by an at-torney or licensed representative, the at-torney or representative must request afee approval from the Board. In fact, it isa misdemeanor in a compensation caseto charge a fee other than that awarded.While the Board has complete discretionto establish the fees, fees will be awardedcommensurate with the services renderedand the claimant’s financial status. Thefee may not be based solely on the amountof the award.

B. InterestThe claimant is entitled to receive simpleinterest of nine percent per annum on


injury or death of himself or others;4. That the injury did not resultsolely from the injured employee’sintoxication on duty;5. That the contents of medical andsurgical reports introduced in evi-dence by claimant constituteprima facie evidence of fact as towhat they state. The employer hasthe burden of proof to rebut thesepresumptions.

4. Statute of LimitationsThe Workers’ Compensation Law re-quires that a claim for compensationmust be filed with the Chair withintwo years of the accident or death orit will be time-barred. This limitationsperiod will be waived either by theadvance payment of compensation orby the failure to raise an objection tothe timeliness of the filing at the firsthearing at which all parties in inter-est are present.

For disabilities or deaths which occurafter January 1, 1985, the runningof the limitations period is suspendedtemporarily for any occupational dis-ease. The claimant, however, must filethe claim within two years after thedisablement and after the claimantknew or should have known that thedisease is or was due to the nature ofthe employment.

J. ConfidentialityWorkers' compensation records main-tained by the Board are confidential. Anyrecord relating to an injury or complaintwill be disclosed only to certain individu-als who are entitled to receive them, in-cluding the claimant and the claimant'sattorney; a workers' compensation insur-ance carrier, employer, or state insurancefund and their attorneys if the record is


the award after 30 days. An employer orcarrier may also be liable for interest andother penalties on medical bills rendered,which are not paid within specified timelimits.

C. PenaltiesThe Workers’ Compensation Law con-tains numerous provisions for penalties.An employer’s failure to secure paymentof compensation for five or less employ-ees within a twelve month period is amisdemeanor punishable by fine of notless than $1,000 nor more than $5,000.A failure to secure payment of compen-sation for more than five employeeswithin a twelve month period is a felonypunishable by a fine of not less than$5,000 nor more than $50,000. An af-firmative defense to any criminal pros-ecution is that the employer took reason-able steps to secure compensation.Higher penalties are imposed for repeatviolations.

Where the employer is a corporation, thepresident, secretary and treasurer are li-able for the failure to secure compensa-tion. The officers have an affirmative de-fense if the officer took reasonable stepsto ensure that compensation was secured,that proper internal procedures were ineffect to do so, and that proper internalcontrols existed to monitor compliancewith these procedures.

An employer who intentionally and ma-terially understates or conceals payroll;or who intentionally and materially mis-represents or conceals employee dutiesso as to avoid proper classification forcalculation of compensation premiums;or who intentionally and materially mis-represents or conceals information per-tinent to the calculation of compensationpremiums, may be deemed to have failed

to secure compensation and will be sub-ject to the above sanctions.

In addition to these penalties, the Chair,upon finding that an employer has failedto secure compensation for a period ofnot less than 10 consecutive days, orfailed to maintain true and accuraterecords, may impose a penalty of $2,000for each 10-day period of non-complianceor an amount not in excess of two timesthe cost of compensation for theemployer’s payroll for the period of thefailure.

If an employer or carrier in an uncontro-verted case fails to notify the Chair within16 days after the last compensation hasbeen paid, that payments have stopped,the Board may impose a penalty of $300payable to the claimant.

If a carrier fails either to file a notice ofcontroversy or to begin paying compen-sation when due or within 10 days afterreceiving a copy of the notice of injury,whichever is longer, the Board may im-pose a $300 penalty, payable to the claim-ant.

If the Board determines that objectionsto an award of compensation were madewithout just cause, an additional $300will be awarded to the claimant.

The Workers’ Compensation Law imposesa mandatory penalty of $100 on employ-ers and carriers for each hearing ad-journed or continued due to their dila-tory tactics or unjustified lack of pre-paredness. An employer or carrier whomakes a frivolous request to adjourn oneof the newly-created “expedited hearings”will be fined $1,000.

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If the Board affirms an Administrative LawJudge’s decision on review, the Board willassess a $150 fine against the employeror insurance carrier seeking review andmay assess a $20 fine against any otherparty seeking review.

In an uncontested case, if the employeror carrier fails to pay any installments ofcompensation within 25 days after theybecome due, the employer or carrier mustpay an additional 20 percent of the com-pensation due to the injured worker ordependent. The Board may waive thispayment. If the Board does not excusethe delay, the Board will assess an addi-tional $300 penalty payable to the claim-ant.

In cases determined through the concili-ation process, the carrier must make pay-ments as required by the final decisionagreement. If the carrier does not makethe required payments within ten daysafter the decision becomes final, theChair will impose a fine of $500 uponverification of the non-payment. Threehundred dollars of this amount is pay-able to the claimant and $200 is payableto the Board.

If an employer or carrier in a controvertedcase fails to make payments of compen-sation according to the terms of the awardand has not applied to the Board for amodification or rescission of that award,within 10 days, the Board will impose apenalty equal to 20 percent of the un-paid compensation, payable to the in-jured worker or his dependents. TheBoard will also impose an assessment of$100 payable into the State Treasury.

If an employer discriminates against anemployee because the employee hasclaimed workers’ compensation from the


employer or has testified in a workers’compensation proceeding, the Board willassess a penalty of not less than $100 orgreater than $2,500 against the employerpayable to the State. The employer alone,not his or her insurance carrier, shall beliable for the penalty.

If an employer inquires into a jobapplicant’s workers’ compensation his-tory or discriminates against the appli-cant because the applicant has filed foror received workers’ compensation ben-efits or is an injured veteran, the employeris guilty of a misdemeanor and, upon con-viction, may be fined up to $1,000.

If an employer refuses to hire, employ orlicense an employee, or discharges anemployee from employment, in order toevade the employer’s legal duty to pro-vide workers’ compensation coverage forthat employee, the employer is guilty ofa misdemeanor.

An employer who fails to post its requirednotice(s) of compliance shall be fined upto $250 for each violation. An employeror carrier or their agent who knowinglymakes a false statement or representa-tion as to a material fact regarding a ben-efit claim or for the purpose of obtaininginsurance is guilty of a class E felony.

D. Stop Work OrderIn 2007, the Legislature authorized theChair to impose the drastic remedy of a“stop-work order.” Whenever the Chairdetermines that an employer has failedto secure the required compensation orfailed to pay penalties assessed againstit, the Chair may serve a stop-work orderupon the employer requiring the cessa-tion of all business operations effectiveimmediately. The employer may applywithin 30 days for a re-determination re-


view of the order. The Chair is autho-rized to file a complaint in state supremecourt to enforce any stop-work order orenjoin any practice made unlawful bystatutory provisions concerning failureto secure compensation and maintenanceof accurate payroll records. If the Chairprevails, the court may award costs, in-cluding the reasonable costs of investi-gation and reasonable attorneys’ fees.Any judgment obtained by the Chair willconstitute a lien against the employer’sproperty until collected.

The Chair may not issue a stop-work or-der in the case of failure to secure com-pensation for domestic or child care em-ployees in the employer’s own household.

E. Suspension and DebarmentEffective 2007, any person subject to afinal assessment of civil fines or penal-ties or a stop-work order, or who has beenconvicted of a misdemeanor under work-ers’ compensation law sections 26 (de-fault in payment of award or other re-quired payments), 52 (failure to securecompensation), or 131 (failure to main-tain accurate records), and any substan-tially-owned entity of such person, willbe ineligible to bid on any public workscontract or subcontract for a period ofone year after the conviction. Any per-son convicted of a misdemeanor for vio-lating the statutory provisions prohibit-ing discrimination against job applicants,or convicted of a felony under any otherarticle of the workers’ compensation law,will be ineligible to bid on any publicworks contract or subcontract for a pe-riod of five years after the conviction.

F. ReimbursementsWhen an employer continues to pay anemployee full salary, the employer is con-sidered to be making advance payments

of compensation for which the employeris entitled to reimbursement from anunpaid compensation award made by theBoard.

An employer is entitled to reimbursementout of compensation due when advancepayments or continued payments ofwages are made.

G. JudgmentIn the case of default by the employer,the Chair or, with the Chair’s consent,any party to the award, may file (1) a cer-tified copy of the Board decision fromwhich appeal has not been taken or, inlimited cases, where an appeal has beentaken, or (2) a certified copy of the de-mand for deposit of security, or (3) a cer-tified copy of the Chair’s order, as appro-priate given the circumstances. TheChair or party must file the documentwith the county clerk for the county inwhich the injury occurred or the countyin which the employer has its principalplace of business. The clerk will thenenter a judgment in the State SupremeCourt. The judgment has the same ef-fect as one rendered by the State Su-preme Court, except that no appeal maybe taken.

A party, upon consent of the Chair, mayuse the same procedure to obtain a judg-ment against a carrier or self-insuredemployer who defaults in the payment ofcompensation or payment for medicalcare as awarded by the Board. The partymust file (1) a certified copy of the Boarddecision from which appeal has not beentaken, or in limited cases, where an ap-peal has been taken, or (2) a certified copyof the award for medical care with thecounty clerk as described above.

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H. Exclusive RemedyThe New York State Legislature has en-sured that the remedies available underthe Workers’ Compensation Law are ex-clusive. If an employer provides for work-ers’ compensation benefits, the employeris not liable to the employee, or theemployee’s spouse, parents, next of kin,or anyone who may have been entitledto recover damages at common law or oth-erwise. If the employer fails to securethe payment of compensation in accor-dance with the statutory requirements,an injured employee or his legal repre-sentative has the option to sue for dam-ages in court rather than receive work-ers’ compensation benefits. If the courtdoes not grant recovery in such a suit,the employee cannot then seek compen-sation benefits.

An employer can secure compensationfor employees by purchasing insurancefrom the State Insurance Fund or from aprivate insurance company, or by self-insuring with the permission of the Chairwhere the employer or an employer grouphas proven financial security and abilityto pay.

V. Record-Keeping

Employers subject to the Workers’ Com-pensation Law must keep and retain ac-curate records of the number of employ-ees, classification of employees, employeeaccidents, and the wages paid for a pe-riod of four years after each entry. A fail-ure to comply with this requirement is amisdemeanor and punishable by a fineof not less than $5,000 nor more than

$10,000. Repeat offenders are subjectto increased penalties.

In addition, certain employers who per-form construction, excavation, and demo-lition activities also must keep accuraterecords of hours worked for all construc-tion employees. A willful or knowing fail-ure to comply may be prosecuted as in-surance fraud.

Employers also must keep a record, on aform prescribed by the Chair, of all inju-ries or illnesses incurred by their employ-ees which occur in the course of employ-ment. The injured employee is entitledto receive a copy of the form upon re-quest. The Workers' Compensation Lawrequires the employer or its designatedthird party to retain such forms for atleast 18 years, but permanent retentionof these records is suggested.

Employers are required to post a noticeof compliance in a form prescribed by theWorkers’ Compensation Board, whichindicates that the employer has compliedwith all the rules and regulations of theBoard and that the employer has securedthe payment of workers’ compensationto its employees and their dependents.As of September 2003, employers who


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ALBANY 100 Broadway-Menands (866) 750-515712241

BINGHAMTON State Office Building (866) 802-360444 Hawley Street13901

BROOKLYN 111 Livingston Street, 22nd Floor (800) 877-137311201

BUFFALO 295 Main Street, Suite 400 (866) 211-064514203

HAUPPAUGE 220 Rabro Drive, Suite 100 (866) 681-535411788

MANHATTAN 215 W. 125th Street (800) 877-137310027

PEEKSKILL 41 North Division Street (866) 746-055210566

QUEENS 168-46 91st Avenue (800) 877-1373Jamaica, 11432

ROCHESTER 130 West Main Street (866) 211-064414614

SYRACUSE 935 James Street (866) 802-373013203


fail to comply with this provision are sub-ject to a $250 fine for each violation.


The Board has the power to hear anddetermine all claims for compensation,require medical service to injuredemployees, approve attorneys' fees,excuse failure to give notice, and certify

questions to the State Supreme Court.

The Board consists of 13 members, atleast four of whom must be attorneysadmitted to practice in New York State.The members are appointed by theGovernor, with the advice and consent ofthe State Senate. The Chair is theadministrative head of the Board. TheBoard's district offices are:

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CHAPTER 10 - DISABILITY BENEFITS LAW

I. Introduction

The New York Disability Benefits Law(“DBL”) requires employers to provide cer-tain benefits to employees and ex-employ-ees unable to work due to non-work re-lated disability. Employers and employ-ees share the cost of providing disabilitybenefits, which must be secured by theemployer through the purchase of insur-ance or by self-insurance. Employersmay provide benefits more generous thanthose required by the DBL by establish-ing an “enriched benefit plan.” The DBLis administered by the Workers’ Compen-sation Board, which is authorized to in-vestigate payroll records, conduct hear-ings, and award benefits when claims aredisputed.

II. Coverage

A. Employment RelationshipAn employer is subject to the DBL andmust provide for the payment of disabil-ity benefits if it employs one or more em-ployees on at least 30 days in any calen-dar year. The DBL excludes from the defi-nition of employee several types of indi-viduals, including: persons engaged ina professional or teaching capacity by areligious, charitable, or educational in-stitution; volunteers, except volunteerambulance workers; independent con-tractors; elementary or secondary schoolstudents working part-time; minor chil-dren of the employer; licensed real estatebrokers and sales associates, licensed in-surance agents and brokers, and mediasales representatives who sell or renewsubscriptions or advertising space formagazines, under limited circumstanceswhere they are treated as independentcontractors and substantially all of theirremuneration is by commission; and anexecutive officer of a corporation who is

Disability Benefits Law • Page 1Revised 2/07

also its sole shareholder. Provision of dis-ability benefits to these individuals is op-tional. The DBL also requires that un-employed individuals receive disabilitybenefits under certain circumstances. Ifan individual is disabled within fourweeks after becoming unemployed, thein-dividual’s last employer is responsiblefor providing disability benefits. If theunemployed individual is disabled morethan four weeks and less than 26 weeksafter becoming unemployed, disabilitybenefits are paid by the Special Fund.

B. Non-Work RelatedDisability benefits must be paid when anon-work related accidental injury or ill-ness, or pregnancy, prevents an employeefrom performing his or her regular du-ties or the duties of any other positionoffered by the employer at the employee’sregular wages. Benefits are not payableif the injury or illness results from com-mission of an illegal act or an act of war,or if the employee is subject to suspen-sion or disqualification from receiving un-employment insurance benefits. Employ-ees who refuse to submit to a requestedphysical examination, and employeeswho knowingly provide false informationin order to obtain benefits, also can bedisqualified from receiving disability ben-efits.

III. Statute

A. CompensationA full-time employee must work for a cov-ered employer for at least four consecu-tive weeks to become eligible for disabil-ity benefits. Part-time employees will be-come eligible for benefits on their 25thday of regular employment with a cov-ered employer. Employees who leave onecovered employer after more than fourconsecutive weeks of employment to work

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ing which they are entitled to receive, ei-ther from an employer directly or from afund to which an employer contributes,amounts at least equal to disability ben-efits. Employees also are not eligible toreceive disability benefits while they re-ceive unemployment insurance or work-ers’ compensation benefits. Employeesmay, however, receive both permanentdisability benefits under a governmentalor prior employer’s program and disabil-ity benefits under the DBL if two sepa-rate disabilities are involved. If only asingle disability is involved, disabilitybenefits under the DBL are reduced bythe amount of permanent disability ben-efits the employee receives or is entitledto receive from another source. Employ-ees receiving social security retirementbenefits also are entitled to full disabilitybenefits

D. No DiscriminationThe DBL prohibits an employer from dis-charging or otherwise discriminatingagainst an employee because the em-ployee has filed or attempted to file aclaim for disability benefits, or has par-ticipated or attempted to participate in aDBL proceeding. An employer violatingthis prohibition can be required to rein-state the discharged employee with fullback pay, and to pay the employee’s at-torneys’ fees and a penalty of up to $500.Employers may discharge employees re-ceiving disability benefits for non-dis-criminatory reasons, but it does not re-duce the employer’s liability for disabil-ity benefits.

E. Securing BenefitsEmployers have three options under theDBL for securing payment of disability

Disability Benefits Law • Page 21994 Edition

for another covered employer, are imme-diately eligible for benefits from the sec-ond employer. The DBL does not requirepayment of disability benefits until theemployee has been disabled for sevenconsecutive days. Disability benefits thenare payable bi-weekly for a maximum of26 weeks in any 52 consecutive week pe-riod or for a “single disability.” Succes-sive periods of disability constitute a“single disability” if they have a commoncause and are separated by less thanthree months. Disability benefits are notpayable, however, for periods of disabil-ity during which the employee is not un-der a doctor’s care or for days the em-ployee performed work for pay.

The DBL provides that disability benefitsmust equal at least 50 percent of theemployee’s average weekly wage, up to acurrent maximum of $170 a week. Em-ployees earning no more than $20 eachweek must receive disability benefitsequal to their weekly wage.

B. Enriched Benefit PlansThe DBL authorizes the Chairman of theWorkers’ Compensation Board to approveenriched benefit plans submitted by em-ployers to satisfy their obligations underthe DBL. These plans must provide ben-efits at least equal to those required bythe statute. The DBL also grants author-ity to the Board to supervise and awarddisability benefits under enriched ben-efit plans; however, there is some ques-tion whether this authority is consistentwith federal law.

C. Other BenefitsThe DBL generally prohibits duplicationof benefits. Employees are not eligible toreceive disability benefits for periods dur-

NIXON PEABODY LLP Disability Benefits Law • Page 3Revised 2/00

benefits. First, employers may pay pre-miums to the State Fund, a governmen-tally created insurance company. Sec-ond, employers may pay premiums to anapproved, private insurance company. Fi-nally, employers may use self-insurance,either independently or in association withother employers. An employer must ap-ply to the Chairman of the Workers’ Com-pensation Board for permission to be self-insured, and must provide a substantialsecurity deposit and proof of its financialability to pay disability benefits. Self-in-surers are subject to the requirementsimposed on insurance carriers, includingpayment of assessments to the SpecialFund to cover the Board’s expenses of ad-ministering the DBL.

Regardless of how payment is secured, dis-ability benefits are usually funded by bothemployer and employee contributions. Theemployee’s contribution is limited by theDBL to the lesser of one-half of one per-cent of a week’s wages or $.60 per week.Enriched benefit plans, however, may befunded by increased employee contribu-tions if the employee agrees and if the in-creased contribution is reasonably relatedto the value of the benefits available. Anemployer also may agree to pay its employ-ees’ contributions instead of deductingthem from wages. Employees receiving oreligible to receive social security old-agebenefits are the only employees who canwaive their right to disability benefits andavoid liability for contributions.

F. ProceduresAn employer must provide an employeeabsent for more than seven consecutivedays due to a disability with a statementof the employee’s rights under the DBL.An employee’s initial written notice of dis-ability and claim for disability benefits

should be filed with the employer or itscarrier within 30 days after the disabilitybegins. If the claimant has been unem-ployed for more than four weeks when thedisability begins, the claim must be filedinstead with the Chairman of the Work-ers’ Compensation Board. The claim formrequires a statement from the employee’sattending physician concerning the dis-ability. A claim form that is incompleteor is filed late cannot be rejected for thesereasons. Disability benefits need not bepaid, however, for any period more thantwo weeks before the claim is properlyfiled, unless the employee can show thatthe claim reasonably could not have beenfiled earlier. The DBL does not requirepayment of disability benefits if a claim isfiled more than 26 weeks after the dis-ability began. These time limitations willnot apply to any person who is mentallyincompetent, or physically incapable ofproviding such notice as a result of a se-rious medical condition, or a minor solong as such person has no guardian ofthe person and/or property.

If a claim for benefits is denied, writtennotice of the rejection must be mailed tothe claimant within 45 days of receipt ofproof of disability, explaining that theclaimant may bring the denial before theWorkers’ Compensation Board. Theclaimant must request Board reviewwithin 26 weeks of the claim’s rejection.If the claimant requests Board review, theBoard will review documents submittedby the parties and it may schedule a hear-ing for testimony before an Administra-tive Law Judge. Both parties are permit-ted to present evidence at the hearing andto be represented by an attorney. Sub-poenas can be issued to require atten-dance of witnesses and production ofdocuments. The Administrative Law

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Judge will render a decision which maybe appealed to the Board by either partywithin 30 days of its filing. The Board’sdecision can be appealed to the Appel-late Division, Third Department, of theNew York Supreme Court. If the employerdoes not appeal a decision awarding dis-ability benefits, the Chairman is autho-rized to file the award as a judgmentagainst the employer, which then can beenforced like any other judgment.

IV. Penalties/OtherRelief Measures

A. Attorneys’ FeesAny fee received by an attorney repre-senting a claimant first must be approvedby the Workers’ Compensation Board. Afee request will not be approved unlessthe claim for benefits is contested andthe claimant is successful. The approvedfee is payable out of the benefits awardedto the claimant, but only as the Boarddirects.

B. InterestIf the Workers’ Compensation Boardawards disability benefits, payments willbegin to accrue interest on the 31st dayafter the Board’s decision.

C. PenaltiesThe DBL provides for the assessment ofcourt-enforceable penalties against em-ployers who fail to comply with its re-quirements. An employer failing to pro-vide for the payment of disability ben-efits by insurance or an approved planmust reimburse the Special Fund for thegreater of either the amount of benefitspaid on behalf of the employer or onepercent of the employer’s payroll for theperiod of non-compliance. In addition,the employer will be fined up to one-halfpercent of its payroll for the period of non-

compliance, plus an amount up to $500.Insurance carriers and self-insured em-ployers may be subject to additional pen-alties. If either is found to have delayedpayment of benefits without just cause,it will be fined up to 25 percent of theamount of benefits delayed or not paid.The Chairman also may collect for theclaimant’s benefit $10 for each week thatthe carrier or self-insured employer failedto pay benefits promptly. A self-insuredemployer also can lose permission to con-tinue as a self-insured employer shouldit fail to pay disability benefits as theBoard directs.

The DBL imposes a mandatory penaltyof $100 on employers and carriers foreach hearing adjourned due to their dila-tory tactics or unjustified lack of pre-paredness.

The DBL permits an employer to be pe-nalized an amount equal to 10 percentof the claimant’s benefits, for pursuing anon-meritorious appeal to Court. Anemployer also can be penalized $25 fortaking a frivolous appeal to the Board.

D. ReimbursementThe DBL permits an employer who makesadvance payments of benefits, or whocontinues to pay an employee’s wagesduring a period of disability, to be reim-bursed by the carrier out of any disabil-ity benefits due the employee for thesame disability. To be reimbursed, theemployer must file a claim with its car-rier before the carrier makes payment tothe employee.

E. MisdemeanorsAn employer’s failure to provide for thepayment of disability benefits within 10days of becoming a covered employer isa misdemeanor, punishable by a fine of


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of compliance in a form prescribed by theWorkers’ Compensation Board, statingthat the employer has provided for thepayment of disability benefits as requiredby the DBL.


The DBL is administered by the Work-ers’ Compensation Board. It is head-quartered in New York City.

The Board also has offices that handledisability benefits matters located aroundthe state. Their addresses and phonenumbers are listed below:


ALBANY 100 Broadway-Menands, 12241 (800) 750-5157

BINGHAMTON State Office Building (866) 802-360444 Hawley Street, 13901

BROOKLYN 111 Livingston Street, 22nd Floor (800) 877-137311201

BUFFALO 295 Main Street, Suite 400 (866) 211-064514203

HAUPPAUGE 220 Rabro Drive, Suite 100 (866) 681-535411788

MANHATTAN 215 West 125th Street, 10027 (800) 877-1373

PEEKSKILL 41 North Division Street, 10566 (866) 746-0552

QUEENS 168-46 91st Avenue, 11432 (800) 877-1373

ROCHESTER 130 West Main Street, 14614 (866) 211-0644

SYRACUSE 935 James Street, 13203 (866) 802-3730

up to $500 and imprisonment for up toone year. If the employer is a corpora-tion, its president, secretary, treasurer,or other officers are also guilty of a mis-demeanor. The DBL also provides thatanyone interfering with the Board’s in-spection of payroll and other records, andthat anyone willfully making a false state-ment concerning a claim for benefits, isguilty of a misdemeanor.

V. Record-Keeping

The Disability Benefits Law does not havespecific record-keeping obligations.

Employers are required to post a notice

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I. Introduction

The State Legislature has declared gen-erally that the well-being of the wageearners of this State requires the com-pulsory setting aside of financial reservesfor the benefit of persons unemployedthrough no fault of their own. To createsuch financial reserves, the State leviesan unemployment insurance tax on em-ployers’ payrolls.

The unemployment insurance tax ratesfor each employer are determined annu-ally based on various factors, includingprior employment and unemploymentexperience. In calendar year 2014, theserates are applied to the first $10,300 ofeach employee’s annual wages. Addi-tional increases in the wage limit will oc-cur each January 1 beginning in 2015,and rising to $13,000 by 2026. Each yearthereafter the wage limit will equal wagesthat do not exceed 16% of the State’s av-erage annual wage as determined by theCommissioner to the nearest hundreddollars.

To qualify for unemployment insurancebenefits, individuals generally must beunemployed through no fault of theirown, be able and available to work, beactively seeking work, and have earnedsufficient wages during the base periodpreceding the filing of the claim from em-ployers who are liable for unemploymentcontributions or payments.

II. Coverage

A. Covered EmploymentEssentially, the Law covers all employ-ment in which a worker performs ser-vices for compensation, subject to cer-tain exclusions. Employment is covered

CHAPTER 11 - UNEMPLOYMENT INSURANCE LAW

Unemployment Insurance Law • Page 1Revised 2/14

whether it is on a full-time, part-time,temporary, seasonal or casual basis andwhether it is performed on or off employ-ers’ premises or in employees’ homes.

Qualified employers may apply for andestablish shared work programs where,in lieu of a layoff to reduce total hoursand wages, an employer may establish aprogram to maintain and stabilize itswork force by distributing available workamong its employees. If the program isapproved, affected employees will be eli-gible for unemployment benefits for thatportion of their workweek which has beenreduced.

Sometimes jurisdictional problems arise.When services are performed partly out-side the State, New York will provide cov-erage if: (1) the employee’s services areperformed primarily in New York; (2) theemployee’s base of operation is New York;(3) New York is the State from which theemployee’s work is directed and con-trolled, and in which some of theemployee’s services are performed; or (4)the employee resides and performs someservices in New York.

B. Non-Covered EmploymentCertain employees are excluded from cov-erage under the Law. Among these are:

1. Independent contractors;2. An individual proprietor’s child orstepchild under the age of 21, and theproprietor’s spouse;3. Children under 14;4. Daytime students in elementary orhigh schools;5. Students, regardless of age, enrolledin nonprofit or public educational in-stitutions in certain work study pro-grams which combine academic in-struction with work experience;

NIXON PEABODY LLP Unemployment Insurance Law • Page 2Revised 2/14

6. Full-time students employed at or-ganized summer camps for less than13 weeks during the year;7. Students in regular attendance inan educational institution which em-ploys them. This exclusion does notapply, however, to fellow, resident, andintern physicians rendering service fora health care facility;8. Golf caddies;9. Some free-lance shorthand report-ers;10. Persons whose employment issubject to the Federal Railroad Un-employment Insurance Act;11. Babysitters under 18 years of age;12. Persons under age 21 engaged incasual labor under certain limited con-ditions; and13. Licensed real estate brokers andsales associates, and licensed insur-ance agents and brokers, under lim-ited circumstances where they aretreated as independent contractorsand where substantially all of theirremuneration is by commission.14. Recreational bowlers, includingbowlers in a league.

Other special rules apply when the em-ployer is a non-profit organization or agovernment entity or an Indian tribe.

III. Statute

A. Threshold Dollar LiabilityAn employer generally becomes liable forunemployment insurance taxes either asof the first day of any calendar quarterin which it pays remuneration totaling$300 or more or as of the first day it takesover the business of an employer who al-ready is covered by the UnemploymentInsurance Law.

Different rules apply to four special types

of employment situations: agriculturalemployment, domestic/household em-ployment, non-profit employment, andemployment with government entities.

1. Agricultural EmploymentAgricultural employment includes anyand all services performed on a farm,as an incident to farming operationsor for the operator of a farm. An agri-cultural employer becomes liable: (1)as of the first day of the calendar quar-ter in which it pays cash remunera-tion of $20,000 or more to persons inagricultural labor; (2) as of the firstday of the calendar year in which itemploys 10 or more persons in agri-cultural labor on at least one day ineach of the 20 different weeks duringthat year or the preceding calendaryear; or (3) as of the first day of thecalendar quarter in which it pays anyremuneration in New York State topersons in agricultural labor if it isalso liable under the Federal Unem-ployment Tax Act.

2. Domestic/Household EmploymentA domestic/household employer be-comes liable as of the first day of anycalendar quarter in which it pays cashremuneration totaling $500 or moreto persons employed in personal ordomestic service in the employer’shome.

3. Not-For-Profit OrganizationA not-for-profit organization is onethat qualifies for exemption under Sec-tion 501(c) (3) of the Internal RevenueCode. A not-for-profit employer be-comes liable as of the first day of thecalendar quarter in which it pays (1)cash remuneration totalling $1,000 ormore or (2) as of the first day of thecalendar year in which it employs four


ment insurance tax must report histotal taxable payroll every quarter. In2014, the first $10,300 paid to eachemployee in any calendar year is tax-able payroll. The total taxable pay-roll is multiplied by the appropriatetax rate to arrive at the amount oftaxes due.

a. Reporting PaymentsFor reporting purposes, wages aredeemed paid on the date paymentis made. Other types of payments,such as tips, meals and lodgings,also must be reported. The amountof tips received in a calendar quar-ter can be certified in a signedstatement by the employee. An em-ployee, however, may choose notto certify tips, in which case tipsmust be calculated according torules established by the Division.To calculate the amount of meals,lodgings or other types of advan-tages given to employees, the em-ployer must estimate their reason-able money value, which may notbe lower than the reasonable valuerequired to comply with minimumwage orders.

b. Due Dates and Late FeesAn employer’s quarterly tax pay-ment is due by the last day of themonth after the quarter ends. Latepayments may subject an employerto costly penalties. In addition tointerest on late payments, an em-ployer may also lose valuable cred-its in calculating future tax rates,as well as credits used in setoffsagainst federal unemployment taxpayments.

or more persons on at least one dayin each of 20 different weeks.

4. Government EntitiesGovernmental entities, which includestate government, municipal corpora-tions and other governmental subdi-visions, as well as any of their instru-mentalities, do not have any thresh-old dollar amount required for cover-age.

B. Employer ResponsibilitiesAll covered employers generally are re-sponsible for obtaining an employer reg-istration number, maintaining records,rendering periodic reports and furnish-ing information for the determination ofbenefit claims.

1. Registration NumberAn employer who becomes liable forunemployment insurance tax mustcontact the Unemployment InsuranceDivision for a seven digit registrationnumber. This number must appearon all correspondence, forms and re-mittances submitted to the Division.

2. Maintaining RecordsAn employer must maintain recordsfor each employee, and retain themfor the current calendar year andthree preceding calendar years. Theseand other business records must beavailable for inspection at the requestof the Division. The records mustshow each employee’s name, socialsecurity number and earnings. Theyalso must show the beginning andending dates of the payroll period, thedays the employee worked and theearnings for each day.

3. Quarterly Reports and PaymentsEvery employer liable for unemploy-

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c. Special Situations Affecting theTaxable Payroll LimitWhere an employee works for twoemployers, taxes are due on thefirst $10,300 paid by each em-ployer unless the employers sharethe employee’s services. In orderto share an employee’s services, theemployers must be financially re-lated and there must be no spe-cific division of the employee’sworking time. If these conditionsexist, then the employers are re-quired to report and pay tax ononly their share of the employee’sfirst $10,300 of total annual earn-ings.

Where an employer takes over thebusiness of a covered employer, thenew employer is required to paytaxes only on the difference be-tween $10,300 and the amount onwhich tax already has been paid.Similarly, where an employee ren-ders services in another state andtaxes are due in that state for thosewages, the employer only pays NewYork tax on the difference between$10,300 and the amount of the outof state wages.

4. Furnishing InformationWhen an individual applies for un-employment insurance benefits, theDivision will request information fromthe claimant regarding his or her prioremployment. In order to facilitate thisprocess, employers are required to givea Record of Employment slip to anyemployee whose employment ceases.The slip contains the employer's name,registration number, and address.

The Division will determine aclaimant's benefit rate primarily based


on information reported by employersin their quarterly payroll reports. Insome circumstances, the Division mayask an employer to provide wage in-formation for a specific claim.

The Division will notify every base pe-riod employer upon the establishmentof a valid original claim for benefits. Ifan employer provides new or correctedinformation in response to the initialnotice of entitlement, adjustments tothe claimant's benefit rate and theemployer's experience rating will bemade on a prospective basis. Adjust-ments will be made retroactively if thenew information results in a higherbenefit rate, results in the claimant'sfailure to establish a valid originalclaim, or if the previous benefit ratewas due to the claimant's willful falsestatement or representation. An em-ployer whose inadequate or late sub-mission of information results in anoverpayment to the claimant will notbe relieved of any charges to its ac-count.

C. Tax Rate CalculationIn most cases, employer tax rates are de-termined annually based on prior em-ployment and unemployment experience.Any new employer, who has not paidtaxes for at least five calendar quarterspreceding December 31, or has not paidany wages in the past payroll year (Octo-ber - September), will be assigned a fixedtax rate not to exceed 3.4 percent as de-termined annually by the Division.

Any other employer will have a tax ratebased on experience, provided it or itspredecessor has been liable for taxes dur-ing the four calendar quarters ending onDecember 31 of any year; has filed allrequired reports during the three payroll

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years preceding the December 31 date;and has paid remuneration to employ-ees for the payroll year ending Septem-ber 30 preceding the December 31 date.

1. Employer AccountsEvery employer is given an individualaccount to which tax payments arecredited and from which benefits paidto former employees are debited. Theaccount is used to establish an ac-count percentage, which in turn isused to determine an employer’s taxrate. Where payments credited exceedbenefits charged, an employer willhave a positive account percentage andultimately a more favorable tax rate.Where benefits charged exceed taxpayments credited, an employer willhave a less favorable tax rate.

a. Transferred AccountsAn employer who takes over thebusiness of another employer whoalready is liable for taxes also takesover the predecessor’s account andexperience rating, proportionate tothe payroll or number of employ-ees assigned to the new employer.

During the calendar year in whichthe take over occurs, the tax ratefor both the transferring employer,on whatever payroll is retained, andthe transferee employer, on what-ever payroll is taken over, will bedetermined or redetermined as ofDecember 31 of the preceding year.That rate will apply to wages paidfrom the date of the transfer to theend of the calendar year in whichthe transfer occurred.

If the new employer and its prede-cessor have paid no remuneration

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during the payroll year ending be-fore the December 31 computationdate, and have paid no taxes for atleast five calendar quarters preced-ing December 31, the maximumrate for an employer with a posi-tive account percentage of less than1 percent, up to a maximum 3.4percent, will be assigned.

To facilitate such computations,employers must notify the Unem-ployment Insurance Division of anybusiness transfer before the end ofthe year following the calendar yearin which the transfer occurred;otherwise, the transfer will not berecognized for experience ratingpurposes.

b. Joint AccountsAny two or more employers hav-ing a common financial interest orwho are in related kinds of busi-ness may apply to the Unemploy-ment Insurance Division for a jointaccount. A joint account is treatedfor experience rating purposes asa single employer account, whichmeans that all employers in thejoint account have the same taxrate. Each employer, however,must file a separate Quarterly Re-port of Contributions.

The account must be maintainedfor a minimum of two years andmay be dissolved upon applicationby any employer, provided priornotice has been given to the otheremployers. The joint account ef-fectively will be dissolved on thecomputation date in the year theapplication was filed.

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c. Certain Transfers Which Seek toReduce Liability For ContributionsGenerally, when an employer trans-fers all or a portion of its organiza-tion, trade, or business to anotheremployer, and there is at least 10percent common ownership, man-agement, or control between the twoemployers at the time of transfer,the unemployment experience ofthe first employer will be transferredto the acquiring employer. How-ever, if the Commissioner deter-mines that a “substantial purpose”of the transfer was to obtain a re-duced liability for unemploymentinsurance contributions, then theexperience rating accounts of bothemployers will be combined into asingle account and assigned a singlerate.

Similarly, if a new employer ac-quires the organization, trade, orbusiness of a covered employer, andthe Commissioner determines thatthe transfer was conducted “solelyor primarily for the purpose of ob-taining a lower rate of contribu-tions,” then the acquiring employerwill not assume the unemploymentexperience of the employer whotransferred the business. Instead,the acquiring employer will be as-signed a rate in accordance with therule normally applicable to new em-ployers.

2. Individual Tax Rate ComputationAn employer’s individual rate basicallydepends on three factors: account per-centage, benefit equalization factor,and the relationship of the accountpercentage to the Size-Of-Fund Index.The account percentage is calculatedby dividing the employer's positive or

negative account balance as of Decem-ber 31 by the average taxable payrollfor the preceding five payroll years (Oc-tober-September).

If an employer with a positive accountpercentage has been liable for tax forless than 22 consecutive calendarquarters, the employer’s positive ac-count percentage is multiplied by aprescribed equalization factor in orderto afford the newer employers an op-portunity to earn rate reductions com-parable to those earned by establishedemployers.

Finally, an employer’s account percent-age is adjusted by the overall size ofthe Unemployment Insurance Fund,using a prescribed Size-Of-Fund Index.The Index is the ratio of the amount ofmoney in the Fund as of December 31to the higher of (1) the total taxablepayrolls for all employers in the lastpreceding payroll year or (2) the aver-age of total taxable payrolls for all em-ployers for the five preceding payrollyears.

3. Subsidiary ContributionsAll employers who are required tomake contributions to the unemploy-ment insurance fund also are requiredto pay a subsidiary contribution basedon a scheduled rate as applied to wagespaid in the four calendar quarters fol-lowing December 31 of each year. Therate varies depending on the balancein the general account, and theemployer's individual experience rat-ing history. Employers who have notbeen liable for contributions duringthe last five calendar quarters must paythe highest percentage charged to em-ployers with a positive account balance.Unlike other contributions, subsidiary


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contributions are credited to the gen-eral account rather than the employer'sindividual account.

4. Reemployment Service Fund TaxAll employers who are required tomake contributions to the unemploy-ment insurance fund are required tomake additional contributions to thereemployment service fund. Theamount of these mandatory contribu-tions is equal to .075% of theemployer's quarterly taxable payroll.The money in the reemployment ser-vice fund is used to improve claimmanagement and reemployment ser-vices by providing additional auto-mated systems and staff.

5. Interest Assessment SurchargeAt times, New York, like other states,borrows money from the federal gov-ernment in order to meet its unem-ployment insurance obligations. Al-though revenues from the quarterly UItax normally are sufficient to repay thefederal loan in time to avoid interestcharges, sometimes the UI tax revenuesare insufficient to avoid an interest as-sessment. When this occurs, employ-ers may be temporarily required to payan assessment for the payment of in-terest due on advances from the fed-eral unemployment account. At suchtime as the Commissioner determinesthat this assessment is no longer nec-essary, any amount remaining fromsuch assessments will be depositedinto the unemployment insurancetrust fund and credited to employeraccounts.

6. Charging BenefitsUnemployment insurance benefits paidto claimants generally are charged tothe last employer prior to the filing of

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the claim in an amount equal to seventimes the claimant's weekly benefitrate. Thereafter, benefit charges areallocated among all the employers inthe claimant's base period which wereused to establish the claim, in propor-tion to the wages the claimant receivedfrom each such employer during thebase period. If the last employer’s totalremuneration to the claimant was lessthan seven times the claimant’s ben-efit rate, that employer’s charges willbe adjusted downward to the nearestwhole number multiple times theclaimant’s benefit rate that is equal toor greater than the total remunerationpaid.

The general account, not theemployer’s account, will be charged forany benefits paid to a claimant follow-ing a final determination that theclaimant lost employment with thatemployer through job-related miscon-duct or voluntary separation of employ-ment without good cause within themeaning of the Unemployment Insur-ance Law.

During times of economic distress,Congress occasionally adopts addi-tional programs for extended unem-ployment benefits.

D. Benefit ClaimsTo qualify for unemployment insurancebenefits, claimants generally must be un-employed through no fault of their own,be able and available to work, be activelyseeking work, and have earned sufficientwages during their base period from em-ployers who are liable for unemploymentcontributions or payments.

The following rules determine whether aclaimant has sufficient wages during the


base period. A claimant's base period isthe first four out of the last five completedcalendar quarters ending with the weekimmediately prior to the filing of the claimfor benefits. A claimant must have beenpaid wages in at least two calendar quar-ters in the base period, with wages of atleast 221 times the minimum wage(rounded down to the nearest $100) be-ing paid in the calendar quarter with thehighest amount of wages. The claimantalso must have been paid at least one andone-half times the highest calendar quar-ter wages during the base period. Forpurposes of this calculation, the State willonly take into account the highest calen-dar quarter wages up to a maximum of22 times the statutory maximum benefitrate. A claimant may not count towardsbase period wages any wages from em-ployment which the Commissioner hasdetermined the claimant lost due to job-related misconduct.

Claimants also must have lost their lastjob through no fault of their own in orderto qualify for benefits. Individuals will bedisqualified for, among other things, quit-ting without good cause, quitting becauseof marriage, and refusing a job offered atthe prevailing local rate for which theclaimant was suited by training and ex-perience. Individuals similarly will be dis-qualified if they are discharged for job-related misconduct.

A claimant will not be disqualified fromreceiving benefits if the separation fromemployment was due to any “compellingfamily reason.” “Compelling family rea-son” includes, but is not limited to (a) do-mestic violence, verified by confidentialdocumentation; (b) illness or disability ofan immediate family member which ne-cessitates care longer than the time theemployer is willing to grant leave (paid or

unpaid); or (c) a move necessitated by achange in the employee’s spouse’s em-ployment location which makes it imprac-tical for the employee to continue to com-mute to work.

If a claimant is ineligible to receive ben-efits because of losing a job under dis-qualifying conditions, the claimant willremain ineligible until the claimant hasworked in subsequent employment andhas earnings equal to at least ten timesthe claimant's weekly benefit amount.

An individual who has filed a valid claimfor benefits must work in subsequentemployment and receive subsequent earn-ings equal to at least ten times theclaimant's weekly benefit amount beforethe claimant is able to claim unemploy-ment insurance benefits once again.

Employees unemployed due to strikesgenerally are ineligible for benefits for aperiod of seven weeks from the day afterthe loss of work. This waiting period willnot apply if the employer hires permanentreplacement workers for the position.

Also, claimants may not receive benefitsunless they are able and available to workand are actively seeking work. In order tobe actively seeking work, a claimant mustbe engaged in systematic and sustainedefforts to find work, as defined by regula-tions to be promulgated by the Commis-sioner. An individual who is not physi-cally or mentally capable of employmentor does not diligently look for work will bedeemed ineligible for benefits.

Claimants will not be eligible to receiveunemployment benefits for any week dur-ing which they receive “dismissal pay” (i.e.,severance pay) in excess of the maximumweekly benefit, as long as the initial pay-


ment of dismissal pay is made within 30days of the claimant’s last day of employ-ment. If the dismissal payment is madein a lump sum or is for an indefiniteamount, the State will allocate the dis-missal payments on a weekly basis be-ginning the day after the claimant’s lastday of employment, for purposes of thisprovision.

A claimant who qualifies for benefits willreceive weekly benefit payments for up to26 weeks in any 52 week period. Weeklybenefits generally are calculated at the rateof 1/26th of the wages received from cov-ered employers during the highest calen-dar quarter in the claimant’s base period,up to a statutory maximum. However, ifthe claimant’s high calendar quarterwages were $3,575 or less, the claimant’sweekly benefit amount will be calculatedat the higher rate of 1/25th of high calen-dar quarter wages, up to the statutorymaximum. Beginning January 6, 2014,if the claimant had wages paid in onlytwo or three calendar quarters during thebase period, and high calendar quarterwages greater than $4,000, the weeklybenefit amount will be 1/26th of the aver-age of wages paid in the two highest quar-ters, up to the statutory maximum. Anyclaimant whose high calendar quarterwages during the base period was morethan $3,575 will receive a weekly benefitamount of at least $143.

The maximum weekly benefit amount iscurrently $405. Effective October 6, 2014,the weekly benefit amount will be a mini-mum of $100 and a maximum of $420,until October 5, 2015, when the maxi-mum will increase to $425. The maximumweekly benefit amount will continue toincrease yearly according to a scheduleset forth in the statute and, beginning inOctober 2019, will be tied to a percentageof the State’s average weekly wage.

Partial benefits can be paid for any weekin which a claimant works no more thanthree days and earns no more than thehighest benefit rate applicable to the claim-ant.

After receiving 10 weeks of benefits, aclaimant who is still unemployed, doesnot have a definite date to return to work,and does not obtain work through a unionhiring arrangement, will be required toaccept any offered employment the claim-ant is capable of performing even if theclaimant is not suited for the job by train-ing and experience, as long as the posi-tion pays at least 80% of the claimant'sprevious highest quarter wages, or paysthe prevailing wage for similar work in thelocality, whichever is less.

Due to recent economic conditions, eli-gible claimants have qualified for addi-tional weeks of benefits in addition to the26 weeks of benefits that is normally avail-able. These additional benefits have beenavailable under two New York programs,the Extended Benefits program and theEmergency Unemployment Compensation(EUC) program. Eligible claimants musthave filed their claim within certain speci-fied time periods and must meet specifiedwork search requirements. The ExtendedBenefits program ended in New York Stateon December 9, 2012. As of February 10,2014, the U.S. Congress has not extendedthe EUC program past its expiration inDecember 2013.

Notwithstanding the other eligibility re-quirements, a claimant shall not becomeineligible for benefits because he or she isparticipating in a Commissioner-approvedtraining program. In addition, a claim-ant attending such an approved coursemay receive additional benefits, for up to26 weeks, once his or her regular benefitshave expired.


The Department of Labor has establisheda self-employment assistance program forqualifying claimants in compliance withapplicable Internal Revenue Code provi-sions. Qualifying claimants are eligibleto receive an allowance in lieu of regularunemployment benefits for the purposeof assisting such individuals in establish-ing a business and becoming self-em-ployed. The allowance will be paid in thesame amount, at the same interval, andon the same terms as regular unemploy-ment insurance benefits. To qualify, in-dividuals must, among other things, oth-erwise meet the requirements for unem-ployment insurance, must be identifiedpursuant to a profiling system as likelyto exhaust regular employment benefits,must be participating in self-employmentassistance activities approved by the De-partment, and must be actively engagedon a full-time basis in activities relatingto the establishment of a business andbecoming self-employed. A claimant’sincome from, or unavailability for otherwork due to, self-employment under thisprogram will not disqualify the claimantfrom continued receipt of payments un-der this program. This program is sched-uled to expire on December 7, 2015.

E. ProceduresAny employer or claimant dissatisfied witha benefit claim determination, and anybase period employer who has protestedthe notification of charges based on vol-untary separation or misconduct, has 30days from the date of the determinationto request a hearing before an Adminis-trative Law Judge.

Within 20 days from the date of the Ad-ministrative Law Judge’s determination,the employer or claimant may file an ap-peal with the Unemployment InsuranceAppeal Board.

Decisions of the Appeal Board can be ap-pealed to the Appellate Division of the Su-preme Court, Third Department.

A claimant who has received a determi-nation of entitlement to benefits may askthe Commissioner to reconsider his or herbenefit rate by filing a request within 10days of the date of the determination ofthe benefit rate, along with proof that thebenefit rate is inconsistent with theclaimant's wage history.

A finding of fact or law contained in a de-cision rendered pursuant to the Unem-ployment Insurance Law by an Adminis-trative Law Judge, the Appeal Board, or acourt shall not preclude the litigation ofany issue of fact or law in a subsequentaction or proceeding. A finding of fact orlaw, however, may be binding upon otherproceedings which arise under the Un-employment Insurance Law or which al-lege that a claimant or employer was de-nied constitutional rights in connectionwith an Unemployment Insurance pro-ceeding.


Any employer who fails or refuses to payunemployment insurance taxes, file a re-quired report, supply requested informa-tion, make its records available for inspec-tion or deduct monies from an employee’searnings to pay any portion of the tax shallbe guilty of a misdemeanor, punishableby a fine of not more than $500 and/orimprisonment for up to one year. Em-ployers who, without good cause, fail tocomply with a request for informationfrom the Division will be fined $50.


In addition, employers who provide inad-equate or late submissions to the Depart-ment of Labor in response to a request forinformation on a claim will not be relievedof any charges to their accounts, even ifthe Department of Labor later determinesthat an employee was ineligible for ben-efits or received an overpayment, if theCommissioner determines that the over-payment was due to the employer’s fail-ure. If the employer shows good cause,the Commissioner may ignore this pen-alty for the employer’s first offense.

Employers who fail to file the requiredquarterly combined withholding wage re-porting and unemployment insurance re-turn are subject to a penalty of 5% of theamount of contributions that were re-quired to be shown on the return, if thereturn is up to one month late. There is aminimum penalty of $100 per each oc-currence. The employer is subject to anadditional 5% penalty for each additionalmonth the return is late, up to a 25% pen-alty, as well as to any penalties imposedby the New York State Tax Law.

Employers who, without good cause, failto provide complete and accurate wagereporting information on their quarterlywithholding wage reporting and unem-ployment insurance reports are subjectto a sliding scale of penalties ranging from$25 to $5,000 depending on the circum-stances under which the failure is discov-ered and the number of prior failures in atwo year period.

In addition, if an employer defaults on anytax payment, the Commissioner of Labormay initiate a civil action to collect theamount in default, plus interest. TheCommissioner also may issue a warrantto place a lien on the employer’s real andpersonal property. If the employer at-

tempts through fraud to avoid payment,a penalty of 50 percent of the amount duemay be assessed.

Any employer who knowingly violates orattempts to violate the provisions regard-ing certain transfers to reduce liability forcontributions (see Section C.1.c, above)will be liable for a penalty of either (a) 10%of the employer’s total taxable wages inthe last completed payroll year or (b) $10,000, whichever is greater. In addition,any person who knowingly advises an-other person to violate or attempt to vio-late these transfer provisions will be li-able for a civil penalty of $10,000. Forpurposes of these penalties, the term,“knowingly” means having actual knowl-edge of, or acting with deliberate ignoranceor reckless disregard for, the prohibitioninvolved. Any violation of these transferprovisions is a Class E felony punishableby a term of imprisonment as prescribedby the penal law.

An employer who certifies that an em-ployee may return to his or her positionafter the conclusion of a strike, but thendoes not permit the employee to return,may be liable for a penalty of up to $750per employee for each week of benefits thatthe employee lost during the waiting pe-riod imposed in instances of industrialcontroversy. The employee also will beentitled to recover the lost benefits.

V. Record-Keeping

As noted earlier, employers must main-tain payroll records for each employeeand retain them for the current calendaryear and for three preceding calendaryears. These and other business recordsmust be available for inspection at therequest of the Unemployment InsuranceDivision.

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ALBANY State Office Building Campus (518) 402-0208Building 12, 12240

BROOKLYN 9 Bond Street, 11201 (718) 613-3432

BRONX 2400 Halsey Street, 10461 (212) 775-3623

BUFFALO 290 Main Street, 14202 (716) 851-2771

ENDICOTT 2001 Perimeter Rd. East (607) 741-447113760

HAUPPAUGE State Office Building (631) 952-6506Veterans Memorial Highway11788

HICKSVILLE 301 West Old Country Road (516) 934-857011801

NEW YORK CITY/West 75 Varick Street, 10013 (212) 775-3584

NEW YORK CITY/East 75 Broad Street, 10004 (516) 510-2825

PLATTSBURGH Bldg. 194, U.S. Oval, 12903 (518) 561-0430

POUGHKEEPSIE 235 Main Street, 12601 (845) 473-2460

QUEENS 138-60 Barclay Avenue, 2nd Floor (718) 321-6362Flushing, N.Y. 11354

ROCHESTER 109 South Union Street, 14607 (585) 258-4510

SYRACUSE 450 South Salina Street, 13202 (315) 479-3385

UTICA 207 Genesee Street, 13501 (315) 793-2304



The records must show each employee’sname, social security number and earn-ings. They must also disclose the begin-ning and ending dates of the payroll pe-riod, the days the employee worked andthe earnings for each day. All earnings,including bonuses, vacation pay, the rea-sonable value of board and lodging, tipsand dismissal pay, must appear in therecords.


The Law is administered by the Unem-ployment Insurance Division of the StateDepartment of Labor. The Unemploy-ment Insurance Tax Service offices arelisted below.

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II. Coverage

The definition of “employer,” as providedin the New York State Employment Rela-tions Act ("the New York Act"), is any per-son acting on behalf of or in the interestof an employer, directly or indirectly, withor without the employer's knowledge.The definition includes purchasers of ser-vices from professional musicians or per-sons otherwise engaged in the perform-ing arts. “Person” is broadly defined toinclude one or more individuals, partner-ships, associations, corporations, legalrepresentatives, trustees, trustees inbankruptcy, or receivers. Notwithstand-ing the broad definitions contained in theNew York Act, the primary jurisdictionallimitation constraining the Board isfound in Section 715 of the New YorkLabor Law, which states as follows:

“The provisions of this article shall notapply to: (1) employees of any em-ployer who concedes to and agreeswith the board that such employeesare subject to and protected by theprovisions of the national labor rela-tions act or the federal railway act; or(2) employees of the state or of anypolitical or civil subdivision or otheragency thereof.”

Thus it is the federal NLRA, and the fed-eral National Labor Relations Board("NLRB") which are the primary restraintson the jurisdiction of the Board with re-spect to private employers.

The NLRB has authority over all labordisputes, as defined in the NLRA, occur-ring “in commerce” or “affecting com-

CHAPTER 12 - STATE LABOR RELATIONS LAWS

I. Introduction

In 1937, the New York State Legislaturepassed the Doyle-Newstein bill, similarto the federal National Labor RelationsAct of 1935 (Wagner Act), seeking to en-courage the practice and procedure ofcollective bargaining and to protect em-ployees in the exercise of their freedomof association, self-organization, and thedesignation of representatives of theirown choosing for the purposes of collec-tive bargaining.

The Legislature also created the New YorkState Labor Relations Board, which wasvested with the responsibility of protect-ing the rights of employees to select bar-gaining representatives and preventingthe commission of unfair labor practices.In 1991, the State Labor Relations Boardwas merged with the State MediationBoard to form the New York State Em-ployment Relations Board. In 2010, theNew York State Employment RelationsBoard was abolished and its functionsassigned to the New York State PublicEmployment Relations Board (“theBoard” or “PERB”), which also adminis-ters the New York State labor relationslaws for public employees.* The newBoard performs all of the duties formerlyperformed by the State Labor RelationsBoard.

The area within which the Board mayexercise its jurisdiction is limited prima-rily by the National Labor Relations Act("the NLRA"), as amended, and the doc-trine of federal preemption, which pro-hibits states from regulating issues sub-ject to and regulated by federal law.

State Labor Relations Laws • Page 1Revised 2/11

* This chapter discusses the law with respect to private employers only.

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prietary and non-profit hospitals withgross revenues over $250,000 peryear;8. Hotels and Motels - $500,000 totalannual business;9. Office Buildings, Shopping Centers,and Parking Lots - $100,000 annualincome, of which $25,000 or more ispaid by other organizations whichmeet any of the standards except non-retail;10. Restaurants - Retail standard;11. Service Establishments - Retailstandard;12. Taxicab Companies - $500,000total annual volume of business; and13. Transit Companies - $250,000 to-tal annual volume of business.

If the NLRB declines to assert jurisdic-tion, the Board is authorized to act. As apractical matter, this has meant that theBoard and its predecessors have assertedjurisdiction over “smaller employers” orthose industries where the NLRB has ex-ercised its discretion to decline jurisdic-tion because the impact on interstate com-merce is not sufficiently substantial.

The Board and its predecessors have ex-ercised jurisdiction over employers in thefollowing industries:

1. Apartment and Office Buildings;2. Clubs;3. Educational, Charitable, andReligious Institutions (Act amendedin 1968);4. Hospital and Residential CareCenters;5. Hotels;6. Lumber Industry;7. Manufacturing;8. Race Tracks;9. Retail Stores;10. Restaurants; and11. Wholesale Enterprises.


merce.” Despite its extensive statutorygrant of jurisdiction, however, the NLRBhas never exercised its full authority. In-stead, it has considered only those caseswhich, in its opinion, have a substantialimpact on commerce. The NLRB has de-veloped the concept of jurisdictional stan-dards, stated in terms of minimum an-nual dollar volume, to aid in determin-ing whether it will effectuate the policiesof the NLRA to assert jurisdiction. Atthe same time, the NLRA specifically pro-vides that states may assert jurisdictionover labor disputes where the NLRB de-clines to assert its authority.

The NLRB’s current jurisdictional stan-dards are, in part, as follows:

1. General Non-Retail - Sales of goodsand services to consumers in otherstates, directly or indirectly (calledoutflow), or purchases of goods andservices from suppliers in other states,directly or indirectly (called inflow), ofat least $50,000 per year;2. Retail - An annual volume of busi-ness of at least $500,0003. Apartment Projects - $500,000 ingross annual revenues - applies tohousing projects, residential apart-ments, cooperatives and condomini-ums;4. Colleges and Universities - Totalannual income of $1,000,000 from allsources except those grants not avail-able for operating costs applies to bothprofit and non-profit institutions5. Communication - $100,000 annualgross volume for television, radio, tele-phone, and telegraph businesses;6. Law Firms - $250,000 annual grossrevenues;7. Hospitals, Health Care Institutionsand Nursing Homes - Nursing homes,visiting nurse associations, and re-lated facilities with gross revenuesover $100,000 per year and other pro-

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ment, labor disputes, or grievances,or to contribute financial or other sup-port to any such organization, by anymeans, including but not limited tothe following: (a) by participating orassisting in, supervising, controllingor dominating (1) the initiation or cre-ation of any such employee organiza-tion or association, agency, or plan,or (2) the meetings, management, op-erations, elections, formulation oramendment of constitution, rules orpolicies, of any such employee orga-nization or association, agency orplan; (b) by urging the employees tojoin any such employee organizationor association, agency or plan for thepurpose of encouraging membershipin the same; (c) by compensating anyemployee or individual for services per-formed in behalf of any such employeeorganization or association, agency orplan, or by donating free services,equipment, materials, office or meet-ing space or anything else of value forthe use of any such employee organi-zation or association, agency or plan;provided that, an employer shall notbe prohibited from permitting employ-ees to confer with him during work-ing hours without loss of time or pay.4. To require an employee or one seek-ing employment, as a condition of em-ployment, to join any company unionor to refrain from forming, or joiningor assisting a labor organization of hisown choosing.

*Section 703 provides: “Employees shall have the right of self-organization, to form, join, or assistlabor organizations, to bargain collectively through representatives of their own choosing, and to en-gage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection,free from interference, restraint, or coercion of employers, but nothing contained in this article shallbe interpreted to prohibit employees from exercising the right to confer with their employer at any time,provided that during such conference there is no attempt by the employer, directly or indirectly, tointerfere with, restrain or coerce employees in the exercise of the rights guaranteed by this section.

Because it is sometimes difficult to pre-dict in a given situation whether or notthe NLRB will assert jurisdiction, proce-dures have been established by the NLRBwhereby parties to a dispute before a statecourt or agency, or the court or agencyitself, may petition the NLRB for an ad-visory opinion as to its jurisdiction.

III. Statute

A. Unfair Labor PracticesThe New York Act contains 11 unfair la-bor practices limited solely to prohibitedemployer conduct. The New York Act doesnot regulate unfair union activity. Thus,it is an unfair labor practice for an em-ployer:

1. To spy upon or keep under surveil-lance, whether directly or throughagents or any other person, any ac-tivities of employees or their represen-tatives in the exercise of the rightsguaranteed by Section 703.*2. To prepare, maintain, distribute orcirculate any blacklist of individualsfor the purpose of preventing any ofsuch individuals from obtaining or re-taining employment because of the ex-ercise by such individuals of any ofthe rights guaranteed by Section 703.3. To dominate or interfere with theformation, existence or administrationof any employee organization or as-sociation, agency or plan which ex-ists in whole or in part for the pur-pose of dealing with employers con-cerning terms or conditions of employ-

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5. To encourage membership in anycompany union or discourage mem-bership in any labor organization, bydiscrimination in regard to hire or ten-ure or in any term or condition ofemployment: provided that nothingin this article shall preclude an em-ployer from making an agreement witha labor organization requiring as acondition of employment membershiptherein, if such labor organization isthe representative of employees as pro-vided in Section 705.6. To refuse to bargain collectively withthe representatives of employees, sub-ject to the provisions of Section 705.7. To refuse to discuss grievances withrepresentatives of employees, subjectto the provisions of Section 705.8. To discharge or otherwise discrimi-nate against an employee because hehas signed or filed any affidavit, peti-tion or complaint or given any infor-mation or testimony under this ar-ticle.9. To distribute or circulate any black-list of individuals exercising any rightcreated or confirmed by this article orof members of a labor organization,or to inform any person of the exer-cise by any individual of such right,or of the membership of any indi-vidual in a labor organization for thepurpose of preventing individuals soblacklisted or so named from obtain-ing or retaining employment.10. To do any acts, other than thosealready enumerated in this section,which interfere with, restrain or co-erce employees in the exercise of therights guaranteed by Section 703.11. To use any state funding appro-priated for any purpose to train man-agers, supervisors, or other adminis-trative personnel about methods todiscourage union organization, or to

discourage an employee from partici-pating in a union organizing drive.

It is specifically not an unfair labor prac-tice for an employer engaged in the per-forming arts to enter into an agreementwith a union representing performingartists even though the union does nothave majority status and even though theagreement requires artists to join theunion within seven days of hire as a con-dition of employment.

B. Representation MattersUnder the New York Act, representativesfor purposes of collective bargaining areselected either by a majority of employ-ees in an appropriate bargaining unit,or by a majority of employees voting inan election conducted for that purpose,or may be designated by the Board aftera showing of majority interest. If a col-lective bargaining representative is se-lected, that representative shall be theexclusive representative of all employeesin the bargaining unit for purposes ofcollective bargaining with respect towages, hours, and other conditions ofemployment.

The Board will designate a representa-tive for purposes of collective bargainingwhen the representative demonstrates ashowing of majority interest by employ-ees in the unit. If the parties disputewhich union, if any, the employees choseas their representative, then the Boardwill make a determination based upondues deduction authorizations and otherevidence, or if necessary, by conductingan election. If the Board determines thatthe evidence of majority interest was ob-tained through fraud or coercion, thenthe Board must conduct an election.Conversely, if the Board determines thata representative would have had a ma-


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jority interest but for an employer’s fraud,coercion, or unfair labor practice, then itwill designate the representative withoutconducting an election.

The Board is empowered to determinewhat constitutes an appropriate bargain-ing unit. A unit appropriate for the pur-poses of collective bargaining could bean employer unit, multiple employer unit,craft unit, plant unit, or any other unit.A majority of employees in a particularcraft, or, in the case of a non-profit hos-pital or residential care center, where themajority of employees of a particular pro-fession or craft so desire, may be desig-nated as an appropriate bargaining unit.

Whenever there is a question or contro-versy concerning the representation ofemployees, the Board is empowered toinvestigate. The Board may provide for ahearing, conduct a secret ballot electionand/or use any other suitable methodto ascertain a representative for purposesof collective bargaining. The Board hasauthority, for example, to determine whomay participate in an election and es-tablish the rules governing representa-tion elections. The statute specificallyprovides that in the event a runoff elec-tion is required where there is no major-ity for either of two competing laborunions or “neither,” the two labor orga-nizations receiving the highest numberof votes shall appear on the ballot of thesecond election.

C. ProceduresIn carrying out its functions, the Boardis now authorized to designate specialmediators who shall have the authorityand power of members of the Board withrespect to the specific matter at hand.

The Board (PERB) is in the process of

modifying its predecessor board’s proce-dures. The procedures which have notbeen explicity overridden by changes inthe law are set out below.

1. Unfair Labor PracticesAny person or labor organizationmake a charge that an employer hasengaged or is engaging in any unfairlabor practice. The charge must bein writing, signed and notarized. Anoriginal and three copies must be filedwith the Board.

After a charge has been filed, it is in-vestigated by a representative of theBoard through an informal investiga-tion process. The Board or its agentmay serve the employer with a copyof the charge along with a notice set-ting a date for the service and filing ofan answer. The employer or the per-son charged has the right to appearin person or otherwise to give testi-mony at the place and time set by theBoard or its agent.

Hearings are conducted before an Ad-ministrative Law Judge designated bythe Board. An Administrative LawJudge has full authority to control theconduct of the hearing and the recordthereof, to admit or exclude testimonyor other evidence, and to rule uponall motions and objections. All par-ties and the Board’s attorney have theright to call, examine, and cross-ex-amine witnesses, and to introducedocumentation or other evidence sub-ject to the rulings of the Administra-tive Law Judge.

After the close of the hearing and brief-ing by the parties, the AdministrativeLaw Judge issues an IntermediateReport containing a statement of the


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case, conclusions of law, and hisrecommendations to the Board con-cerning the disposition of the com-plaint. The parties or the Board’s at-torney then have seven days after ser-vice of the Report to file exceptions, filebriefs, and request oral argument be-fore the Board. The Board reviews theIntermediate Report, the exceptions,briefs, and arguments before makingits final decision. If the Board deter-mines that the employer has engagedin an unfair labor practice, it must stateits findings of fact and issue an orderrequiring the employer to cease anddesist, and to take such further affir-mative or other action as will effectu-ate the purpose of the New York Act. Ifthe Board should determine that nounfair labor practice has been commit-ted, it makes its findings of fact andissues an order dismissing the com-plaint.

Any party aggrieved by the Board’s or-der may seek judicial review to modifyit in whole or in part. The Board alsohas the power to petition the State Su-preme Court seeking enforcement ofits order and for appropriate tempo-rary relief or a restraining order.

2. Representation MattersA representation petition may be filedwith the Board by employees, employ-ers, or their representatives. The peti-tion must be signed and notarized. Anoriginal and three copies should befiled with the Board.

A representative of the Board will at-tempt to resolve the matter informallyby meeting with the parties and at-tempting to negotiate a private adjust-ment or by having the parties consentto an election conducted by the Board.

If the matter cannot be settled infor-mally, and there is a question or con-troversy concerning representation,the Board may direct a notice of hear-ing be issued requiring a formal hear-ing before an Administrative LawJudge. At the conclusion of the hear-ing, the Administrative Law Judgesubmits a report to the Board sum-marizing the issues, the positions ofthe parties, and the AdministrativeLaw Judge’s opinion and recommen-dations. The parties are given the op-portunity to file briefs both with theAdministrative Law Judge and withthe Board.

The Board, after reviewing the briefs,arguments, and Administrative LawJudge’s report, issues a decision ei-ther dismissing the petition or direct-ing an election. If the Board directsan election, the Board sends a noticeto all parties setting forth the time andplace of the election, the employeeseligible to vote, the choices on the bal-lot, and the number of observers per-mitted for each party.

The election is conducted by secretballot under supervision of the Board.The ballots are counted at the con-clusion of the election and a report isissued. The parties then have fivedays to file any objections to the elec-tion.

Depending on the results, the Boardeither dismisses the petition for lackof majority or issues a certification ofrepresentative. The Board’s certifica-tion bars a representation election forone year.


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3. Grievances and Disputes in Non-Profit Hospitals and Residential CareCentersIt is unlawful for employees of a non-profitmaking hospital or residentialcare center, their representatives, orany other person to engage in or toinduce or encourage any strike, workstoppage, slowdown or withholding ofgoods or services by such employeesor other persons at such hospital orresidential care center. Similarly, itis unlawful for a non-profit hospitalor residential care center to initiate orcause any lockout of the employees ofsuch hospital or residential care cen-ter.

As a result, all collective bargainingagreements with non-profitmakinghospitals and residential care centersare required or are presumed to con-tain provisions for final and bindingarbitration of all grievances (definedas controversies or claims arising outof or relating to the interpretation, ap-plication, or breach of the provisionsof a collective bargaining agreement).Also, all collective bargaining agree-ments at non-profitmaking hospitalsand residential care centers are re-quired or are presumed to containprovisions for the final and bindingarbitration of disputes (defined as allother controversies, claims, or diswillbe subject to final and binding arbi-tration.

4. Judicial ReviewThe Board has the power to petitionthe State Supreme Court in an unfairlabor practice proceeding for the en-forcement of its order and for appro-priate temporary relief or a restrain-ing order.

Any party aggrieved by a final orderof the Board may also obtain reviewof such order in an unfair labor prac-tice proceeding by filing a petition withthe State Supreme Court seeking tohave the Board’s order modified or setaside.

In any unfair labor practice proceed-ing involving a non-profit hospital orresidential care center, a petition seek-ing review or enforcement must befiled directly with the Appellate Divi-sion of the State Supreme Court, andsuch proceeding will have precedenceover all other cases in such Court.

D. State Funds and Union NeutralityNew York Labor Law Section 211-a, en-acted in 2002, prohibited employersfrom using state-appropriated funds tooppose or advocate union organizing. Afederal district court has permanentlyenjoined New York State from imple-menting or enforcing this law. SeeHealthcare Association of New YorkState, Inc. v. Cuomo. No. 1:03-CV-0413(N.D.N.Y. filed Sept. 7, 2011).

This law provided that employers couldnot use state funds to hire or pay attor-neys, consultants, or other contractorsto “encourage” or “discourage” unionorganization or participation in an or-ganizing drive. Employers also were notpermitted to use state funds to hire orpay their own employees whose princi-pal job duties were to “encourage” or “dis-courage” union organization or organiz-ing drives. Nor could employers use statefunds to train managers, supervisors orother administrative personnel regard-ing methods to encourage or discour-age union organization or participationin a union organizing drive. The law



did not define what was meant by thebroad terms, “encourage or discourageunion organization” or “funds appropri-ated by the state.”

In September 2011, Healthcare Associa-tion of New York State, Inc. v. Cuomoheld § 211-a to be unenforceable be-cause it is preempted by federal laborlaw. The court determined that § 211-a“regulates in a zone protected and re-served [by the National Labor RelationsAct] for market freedom” and thereforeis preempted by the NLRA. In addition,the state law regulated non-coerciveemployer speech about unionization,which is an action expressly precludedby the NLRA.

In reaching its decision, the court reliedheavily on the 2008 U.S. Supreme Courtcase, Chamber of Commerce v. Brown,554 U.S. 60 (2008). In Brown, the Su-preme Court considered and struckdown a California state statute very simi-lar to § 211-a. The court in HealthcareAssociation of New York State, Inc. v.Cuomo adopted the reasoning set outin Brown that “it is not permissible for aState to use its spending power to ad-vance an interest that – even if legiti-mate in the absence of the NLRA – frus-trates the comprehensive federal schemeestablished by that Act.”

IV. Penalties/OtherRelief Measures

The Board has the power to order an em-ployer to cease and desist, as well as todirect an employer to take certain otheraffirmative action to remedy an unfair la-bor practice.

The statute provides, but is not limitedto, orders requiring a respondent to: (a)

withdraw recognition from and refrainfrom bargaining collectively with any em-ployee organization defined as a companyunion or established, maintained, or as-sisted by any action defined as an unfairlabor practice; (b) award back pay; (c) re-instate with or without back pay, employ-ees unlawfully discriminated against un-der Section 704; (d) reinstate with or with-out back pay, all employees out of workas a result of unfair labor practices; and(e) maintain a preferential hiring list foremployees out of work in connection withan unfair labor practice dispute.

In addition to the above, the Board usu-ally orders employers to post notices stat-ing that they will not violate the Act’sunfair labor practice provisions.

Also, any person who willfully impedesor interferes with any member of theBoard or its agents or who interferes withthe exercise by employees of their rightto select representatives in a Board di-rected election may be punished by a fineof not more than $50,000 or by impris-onment for not more than one year, orboth.

Labor Law § 211-a had imposed civilpenalties and fines for the use of statefunds for opposing or advocating unionorganizing and had permitted the Attor-ney General to seek a court order enjoin-ing such use. The enforcement of § 211-a has been permanently enjoined. There-fore, these penalties and relief measuresare no longer enforceable.

V. Record-Keeping

The State Labor Relations Act does nothave specific record-keeping obligations.

Labor Law § 211-a had placed strict ac-


counting and financial record-keeping re-quirements on employers that receivedstate-appropriated funds and encouragedor discouraged union organizing. Theenforcement of § 211-a has been perma-nently enjoined. Therefore, these record-keeping requirements are no longer ineffect.

VI. Administering AgencyA. New York State Public EmploymentRelations Board

The New York State Public EmploymentRelations Board is an agency operatingautonomously within the Department ofLabor. The board is composed of three

ALBANY 80 Wolf Road, Suite 500, 12205 (518) 457-2578

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BUFFALO 535 Washington St., Suite 302, 14203 (716) 847-3449

members appointed by the Governor withthe advice and consent of the Senate.Each member serves a six year term. TheGovernor designates one member to bethe Chair of the Board. Each memberhas an equal vote on decisions of theBoard and any two members may con-stitute a majority. The Chair is respon-sible for carrying out policies set by theBoard and for overseeing the functionsand administration of the agency.

The principal office of the Board is in Al-bany. Regional offices are located in NewYork City and Buffalo. Offices are locatedat:

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I. Introduction

All of the other chapters of this book havedealt with statutes that govern the rela-tionship between employers and employ-ees. There is another body of law, how-ever, which also affects this relationship.This body of law is developed by thecourts and is traditionally referred to as“common law.” There are numeroustheories of common law which affect uponthe employment relationship. This chap-ter, however, will focus only upon one ofthose theories — Employment At Will.

II. Coverage

The employment at will doctrine prima-rily affects non-unionized employees inthe private sector. Most public employ-ees are covered by civil service laws andmost unionized employees are covered bycontracts which require “just cause” fordischarge.

III. General Rule

The historical common law rule is that,absent any contractual or statutory pro-visions, employment for an indefinite pe-riod constitutes a hiring “at will” whichcan be terminated by either the employeror employee at any time, with or withoutnotice, and for any reason or no reason.Thus, an employer may discharge an atwill employee with or without cause.Martin v. New York Life Insurance Co.,148 N.Y. 117 (1895).

IV. Erosion of Rule

Courts in many states have developedvarious theories modifying the at will rule.

A. Rule in Other StatesSome courts have found exceptions to the

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at will rule under a contract theory, rul-ing that oral or written representationsof a “just cause” standard of dischargecreate a legally enforceable contract.These courts, for example, will find anemployment contract based on state-ments contained in a personnel manualor written personnel policy.

Other courts have used a tort theory tofind that a discharge violates establishedpublic policy. Discharges have been over-turned, for example, where an employeewas fired for filing a workers’ compensa-tion claim or for refusing to commit per-jury.

Finally, some courts have found an im-plied obligation of good faith and fairdealing in every employment relation-ship. This obligation limits the circum-stances under which an employer maydischarge an employee. Courts apply-ing this theory have overturned dismiss-als where, for example, an employee wasdischarged so that the employer couldavoid having to pay commissions.

B. The Rule in New YorkNew York courts generally have appliedthe employment at will rule strictly, ar-guing that it is the role of the Legisla-ture, not the courts, to create exceptionsto the common law rule. New York courtshave, however, recognized the limited ex-ceptions discussed below.

1. Contract Theory - Express Termsof the Employment AgreementThe New York Court of Appeals hasrecognized a cause of action for breachof contract based on an express rep-resentation in a personnel manual.Weiner v. McGraw Hill, Inc., 57 N.Y.

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firmed that a legally enforceable claimagainst an employer requires the ex-istence of an express policy, as statedin Sabetay, as well as the additionalelements identified in Weiner.

In Lobosco v. New York TelephoneCompany/NYNEX, 96 N.Y. 2d 312(2001), the New York Court of Appealsheld that a detailed contractual dis-claimer in an employee manual pre-vented an employee from claiming hehad either an express or implied con-tract of employment. In this case theplaintiff was an employee of NYNEXand had been issued an employeemanual. The manual stated that anyemployee with knowledge of illegal,unethical or fraudulent behaviorwithin the company should report itto the employee’s supervisor or otherdesignated company officials. Themanual also assured employees thatthey would be protected against anyform of reprisal for reporting such aviolation. However, the manual alsostated that the manual was not a con-tract of employment, did not createcontractual rights, and that all of theemployees were employed at will. TheCourt of Appeals ruled that“[r]outinely issued employee manuals,handbooks and policy statementsshould not lightly be converted intobinding employment agreements.”The Court went on to explain that thedisclaimer prevented the creation of acontract and negated any protectionfrom termination plaintiff may haveinferred from the manual’s no-reprisalprovision.

The United States Court of Appealsfor the Second Circuit has held that awritten contract referring to “periodi-

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2d 458 (1982). The Court based itsdecision on the following factors in thecase:

1. The employer induced the em-ployee to leave his former employerby assuring him that he would notbe dismissed except for cause;2. The “just cause” assurance wasincorporated into the employmentapplication that the employee com-pleted;3. The employee rejected other of-fers of employment in reliance onthis assurance;4. The “just cause” standard wasincorporated into the employer’swritten personnel policy; and5. As a supervisor, the employeewas required to follow the “justcause” policy himself when dis-charging employees.

In a later case, the Court of Appealsemphasized the unusual circum-stances in Weiner and refused to re-lax the Weiner requirements or expandthe Weiner holding to cases of impliedcontracts. In Sabetay v. Sterling Drug,Inc., 69 N.Y. 2d 329 (1987), the Courtfound that an employee did not havea cause of action for breach of con-tract even though the employer’s writ-ten policies required employees to re-port illegal activities to senior man-agement and the employee allegedlywas dismissed for reporting such ac-tivities. The Court affirmed the dis-missal of the employee’s case becausethe employee had not shown an ex-press agreement limiting theemployer’s right to terminate at will.Accord, O’Connor v. Eastman KodakCompany, 65 N.Y.2d 724 (1985).

In DePetris v. Union Settlement Ass'n.,86 N.Y.2d 406 (1995), the Court reaf-

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nonetheless are determined by a spe-cific event relating to the employer'sstatus, may be deemed to be bindingemployment contracts outside theemployment-at-will context.

In 2008, the New York Court of Ap-peals decided that a nursing home ad-ministrator was employed at-will af-ter her original two-year employmentcontract expired. The case of Goldmanv. White Plains Center for NursingCare, LLC, 11 N.Y. 3d 173 (2008),considered a contract that containedprocedures for renewing the contract;stated it could be modified only by asigned writing; and stated that, uponexpiration, the employer would be re-sponsible only for paying salary andbenefits through the expiration date.The employee continued working formany years after her contract expired.When her employment was termi-nated, she brought a lawsuit assert-ing a breach of contract. She reliedon an old common law rule that pre-sumes a new contract, with the sameterms and conditions as the originalcontract, is created on a year-to-yearbasis when the original contract ex-pires. The court held that this pre-sumption did not apply to the con-tract before it. In this case, the termsof the contract indicated that the par-ties did not intend to allow the con-tract to renew automatically. There-fore, the employee became employedat-will after her initial contract ex-pired.

2. Contract Theory - Implied Covenantof Good Faith and Fair DealingBefore 1992, New York courts refusedto find an implied covenant of goodfaith in any employment contract.

cal reviews based on performance”does not mean that the contract canbe terminated only after a poor per-formance review. Arledge v. StratmarSystems, Inc., 948 F.2d 845 (2d Cir.1991).

In addition to the "just cause" excep-tion described above, the employment-at-will rule does not apply when anemployer hires an employee for a pe-riod of time which is "definite" or "of afixed duration." State and federalcourts in New York have long held thatan employer's promise to hire an em-ployee "permanently," "long-term", or"until your retirement" is too vagueand indefinite to satisfy the require-ment of a definite duration. The em-ployment-at-will rule applies to suchpromises.

In 1998, the New York Court of Ap-peals decided a case which somewhatblurs the boundaries of what consti-tutes an employment for a "definite"duration. The case of Rooney v. Tyson,91N.Y.2d 685 (1998), involved an al-leged contract between Michael Tyson,the professional boxer, and his formertrainer, Kevin Rooney. Rooney suedTyson after Tyson replaced him withanother trainer. He alleged that Tysonhad promised to retain him as histrainer "for as long as Tyson is a pro-fessional fighter." The court held thatalthough the exact ending date ofTyson's professional boxing career wasnot precisely calculable, the employ-ment period was sufficiently definiteand determinable to satisfy thedurational requirement. ThereforeRooney's employment fell outside theemployment-at-will context. Thusemployment agreements which end ona date which is not fixed, but which

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charge an attorney because he re-ported a fellow attorney’s alleged ethi-cal violation to a judicial disciplinarycommittee, as required by the rules ofattorney conduct.

The Court held that, as a general rule,there is an implied requirement in ev-ery contract that neither party to theagreement will intentionally do any-thing to prevent the other party fromcarrying out the agreement. TheCourt reasoned that whenever a lawfirm hires an attorney, both partiesunderstand that the attorney willpractice law in accordance with theprevailing rules of conduct and theethical standards of the profession. Inthis instance, a disciplinary rule re-quired the attorney to report the eth-ics violations of other attorneys. Thisrule is so critical to the self-regula-tion of the legal profession that it can-not be separated from the core pur-pose of the employment relationship- i.e., the attorney’s ethical practice ofthe profession. Thus, the law firmcould not force the attorney to con-tinue his employment on the condi-tion that he violate a primary rule gov-erning the practice of his profession.To do so, in the Court’s view, wouldfrustrate the only legitimate purposeof the employment relationship.

The Court distinguished its contraryholdings in Sabetay supra, andMurphy supra, by pointing out thata violation of the Company rules inthose cases did not prevent the em-ployees (who were accountants) fromcarrying out their employment agree-ments with the defendant manufac-turers. It would have been inconsis-tent with an element of those agree-ments (i.e., at will employment) for the

In Murphy v. American Home Prod-ucts Co., 58 N.Y.2d 293 (1983), theCourt considered the case of a com-pany financial officer who alleged thathe was discharged for following a com-pany rule that required him to dis-close accounting improprieties to com-pany officers and directors. The em-ployee asserted that all employmentcontracts include an implied obliga-tion of good faith and fair dealing andthat the company violated this obli-gation by discharging him.

The New York Court of Appeals heldthat no such implied obligation ex-ists. The Court held that the exist-ence of an implied duty of good faithand fair dealing would be inconsis-tent with, and destructive of, the otherterms of the employee’s contractualrelationship, i.e., at will employment.Murphy, 58 N.Y.2d at 304. In 1987,the New York Court of Appeals inSabetay v. Sterling Drug, Inc., supra,reiterated that New York does not rec-ognize an implied covenant of goodfaith in employment relationships.The Court affirmed this rule yet againin 1989 in Ingle v. Glamore MotorSales, 73 N.Y.2d 183 (1989), wherethe Court refused to find an impliedduty of good faith even where the em-ployee was also a minority shareholderin a closely-held corporation andclaimed rights stemming from the spe-cial duty of loyalty and good faithamong shareholders.

In December 1992, however, the Courtof Appeals created a narrow exceptionto the rule that there is no impliedduty of good faith and fair dealing inemployment contracts. In Wieder v.Skala, 80 N.Y.2d 628 (1992), theCourt held that there was an implied-in-law duty for a law firm not to dis-


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Court to find an implied limitation ofthe employer’s right to terminate therelationship. By contrast, the rulesof conduct and the ethical standardsin Wieder governed both the employerand employee in the practice of theircommon profession, a goal which wasthe sole purpose of their relationship.

Following Wieder, it was unclear towhat extent the implied duty of goodfaith and fair dealing applied to theemployment relationships of otherprofessionals, such as physicians,nurses, or architects, who have statu-tory reporting obligations or who arebound by a professional code of eth-ics. In 2003, however, the Court ofAppeals narrowly construed theWieder exception and declined “to cre-ate a broad new exception to the pre-sumption of at-will employment, ap-plicable to hosts of professional em-ployees.” In Horn v. The New YorkTimes, 100 N.Y. 2d 85 (2003), thecourt clarified that this implied dutyof good faith does not apply merelybecause an employee’s profession isregulated by ethical and professionalrules of conduct, but rather dependsupon whether the employer and em-ployee are engaged in a “common pro-fessional enterprise” through whichthey are mutually obligated to thesame ethical code.

Plaintiff Horn was the Associate Medi-cal Director of The New York Times’Medical Department, where her re-sponsibilities included providingmedical care to employees and mak-ing determinations whether injurieswere work-related for workers’ com-pensation purposes. Horn claimedthat The Times terminated her in vio-lation of an implied contract when she

refused managerial instructions to al-legedly breach patient confidentialityand to allegedly misinform patientsabout whether their injuries werework-related. Reversing the SupremeCourt and the Appellate Division, theCourt held that the Wieder exceptiondid not apply in Horn’s case, becauseshe and her employer were not en-gaged in a common professional en-terprise which was mutually obligatedto the same ethical code. The Courtreasoned that Horn was more like theplaintiffs in Murphy and Sabetay thanthe plaintiff in Wieder, because shewas applying her professional skillsin a corporate management capacityfor a non-medical employer. TheCourt held that no implied covenantof good faith and fair dealing couldbe presumed under such circum-stances.

The New York Court of Appeals fur-ther clarified this exception in 2012in Sullivan v. Harnisch, 19 N.Y.3d 259(2012). There, plaintiff Sullivan wasa former hedge fund compliance of-ficer who was discharged after hequestioned the personal stock tradesof his employer’s President. The Courtheld that the Wieder exception did notapply to Sullivan. The Court statedthat, unlike the plaintiff in Wieder,Sullivan did not have regulatory andethical obligations that were so closelylinked to his employment duties thatthey could not be separated. TheCourt emphasized that, unlike theplaintiff in Wieder, Sullivan was “notassociated with other compliance of-ficers in a firm where all were subjectto self-regulation as members of acommon profession.”

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3. Tort TheoryUnlike courts in some other states, theNew York Court of Appeals has refusedto recognize a cause of action for abu-sive or wrongful discharge based on acommon law tort theory of liability.

In Murphy v. American Home Prod-ucts Co., 58 N.Y.2d 293 (1983), inaddition to claiming that his dis-charge violated an implied covenantof good faith and fair dealing, the em-ployee also claimed that the dischargewas contrary to public policy and wascarried out in a “deliberately and vi-ciously insulting” manner intended tohumiliate and embarrass him. TheCourt held that the company rule didnot limit the employer’s right to firethe employee “at will” and that NewYork does not “recognize a cause ofaction in tort for abusive or wrongfuldischarge of an employee.”The Court summarized New York’srule regarding employment at will:

In sum, under New York law as itnow stands, absent a constitution-ally impermissible purpose, astatutory proscription, or an ex-press limitation in the individualcontract of employment, anemployer’s right at any time to ter-minate an employment-at-will re-mains unimpaired.

Murphy v. American HomeProducts, supra at 305.The Court of Appeals in Wieder, su-pra, affirmed in December 1992that it will not allow suits in tortfor wrongful discharge.


V. Enforcement

An employee who asserts that he or shehas been terminated in violation of anexpress limitation contained in his or hercontract of employment may bring a courtaction to recover damages arising fromthe employer’s breach of contract. Suchan action is governed by the statute oflimitations pertaining to contracts andmust be commenced within six years ofthe alleged breach of contract.

VI. Conclusion

Employers should carefully review theirpersonnel policies and employee hand-books to ensure that they do not containlanguage or representations concerningjob security or other terms and condi-tions of employment by which the em-ployer is not willing to be bound. Em-ployers may also wish to consider usingdisclaimers in employee handbooks andon employment application forms whichadvise employees and prospective employ-ees that they will be employed at will andthat no contract to the contrary, ex-pressed or implied, is created by an agree-ment to hire. Because such languagemay have adverse consequences on em-ployee morale and in other ways, itshould be adopted only after carefullyreviewing the proposed language with le-gal counsel and with personnel special-ists.

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CHAPTER 14 - SMOKING / LEGAL ACTIVITIES

I. Introduction

This chapter discusses two state lawswhich regulate whether employees mayengage in certain legal activities at workand at home. The Clean Indoor Air Actregulates smoking in the workplace andin public places, and the Legal ActivitiesLaw of 1992 protects recreational, politi-cal, union, and certain other legal activi-ties outside of work.

The two laws arise out of a common back-ground. In 1989, faced with mountingevidence regarding the adverse health ef-fects of environmental tobacco smoke, theNew York Legislature enacted restrictionson smoking in the workplace. Then, con-cerned about reports that some employ-ers were refusing to hire employees whosmoked, even when the employeessmoked only off-the-job, the tobacco in-dustry and civil liberties groups joinedforces to seek protection for smokers. TheLegislature broadened the scope of theirproposal, enacting a law which protectsnot only smoking off workplace premises,but a host of other legal off-the-job ac-tivities. These two laws are discussedbelow.

II. Clean Indoor Air Act

The Clean Indoor Air Act is part of thePublic Health Law. Effective July 24,2003, the amended Act prohibits smok-ing in virtually all work places, includ-ing restaurants and bars. The changesin the law during 2003 reflect the State’scommitment to ensure that all workersare protected from second-hand smoke.

A. Definitions1. Smoking“Smoking” means the burning of a

Smoking / Legal Activities • Page 1Revised 2/04

lighted cigar, cigarette, pipe or anyother matter or substance which con-tains tobacco.

2. Employer“Employer” means any person, part-nership, association, limited liabilitycompany, corporation or nonprofitentity which employs one or more per-sons, including the legislative, execu-tive and judicial branches of state gov-ernment and any political subdivisionof the state.

3. Place of Employment“Place of employment” means any in-door area or portion thereof under thecontrol of an employer in which em-ployees of the employer perform ser-vices, and includes, but is not limitedto, offices, school grounds, retailstores, banquet facilities, theaters,food stores, banks, financial institu-tions, factories, warehouses, employeecafeterias, lounges, auditoriums, gym-nasiums, restrooms, elevators, hall-ways, museums, libraries, bowlingestablishments, employee medical fa-cilities, rooms or areas containingphotocopying equipment or other of-fice equipment used in common, andcompany vehicles.

4. Food Service Establishment“Food service establishment” meansany area, including outdoor seatingareas, or portion thereof in which thebusiness is the sale of food for on-pre-mises consumption.

5. Bar“Bar” means any area, including out-door seating areas, devoted to the saleand service of alcoholic beverages foron-premises consumption and where

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B. Statute1. Prohibitions and RestrictionsThe Act states that smoking shall notbe permitted and that no person shallsmoke in the following indoor areas:

a. Places of employment;b. Bars;c. Food service establishments;d. Enclosed indoor areas open tothe public containing a swimmingpool;e. Public means of mass transpor-tation including subways, under-ground subway stations, and whenoccupied by passengers, buses,vans, taxicabs and limousines;f. Ticketing, boarding and waitingareas in public transportation ter-minals;g. Places where services are offeredto children (e.g. youth centers, fa-cilities for detention, group homes,public institutions, residentialtreatment facilities, child care fa-cilities and child day care centers);h. All schools, including schoolgrounds;i. All public and private colleges,universities and other educationaland vocational institutions;j. General hospitals, residentialhealth-care facilities, and otherhealth care facilities licensed by thestate in which persons reside, ex-cept that smoking may be permit-ted by patients in separately en-closed rooms at residential healthcare facilities, adult care facilities,community mental health resi-dences, or facilities where daytreatment programs are provided,where such rooms are designatedas smoking rooms for patients;k. Commercial establishmentsused for the purpose of carrying onor exercising any trade, profession,


the service of food is only incidentalto the consumption of such beverages.

6. Membership Association“Membership association” means anot-for-profit entity which has beencreated or organized for a charitable,philanthropic, educational, political,social or other similar purpose.

7. School Grounds“School grounds” means any build-ing, structure, and surrounding out-door grounds, including entrances orexits, contained within a public or pri-vate pre-school, nursery school, el-ementary or secondary school’s legallydefined property boundaries as regis-tered in a county clerk’s office, andany vehicles used to transport chil-dren or school personnel.

8. Retail Tobacco Business“Retail tobacco business” means a soleproprietorship, limited liability com-pany, corporation, partnership orother enterprise in which the primaryactivity is the retail sale of tobaccoproducts and accessories, and inwhich the sale of other products ismerely incidental.

9. Enforcement Officer“Enforcement officer” means the boardof health of a county or part countyhealth district, or in the absencethereof, an officer of a county desig-nated for such purpose by resolutionof the county legislature or board ofsupervisors. If a county makes no des-ignation, then the State Departmentof Health is its enforcement officer. Ina city with a population of more thanone million, the enforcement officeris the city’s department of health andmental hygiene.

NIXON PEABODY LLP Smoking / Legal Activities • Page 3Revised 2/14

a. Private homes, private residencesand private automobiles (except forprivate homes where child care ser-vices are provided when children en-rolled in such day care are present);b. A hotel or motel room rented to oneor more guests;c. Retail tobacco businesses;d. Membership associations, if all of theduties related to the operation of theassociation (e.g. the preparation andservice of food and beverages, receptionand secretarial work, security services)are performed by volunteer membersof the association who do not receivecompensation of any kind from the as-sociation or any other entity for the per-formance of such duties;e. Cigar bars registered* with the ap-propriate enforcement officer that, inthe calendar year ending December31, 2002, generated 10% or more oftheir total annual gross income fromthe on-site sale of tobacco products(not including any sales from vend-ing machines) and the rental of on-site humidors;f. Up to 25% of the outdoor seatingcapacity of food service establishmentswith no roof or ceiling enclosure, ifthe area is at least three feet away fromthe non-smoking outdoor areas, andis clearly designated as a smoking areawith written signage; andg. Enclosed rooms in food service es-tablishments, bars, hotel and motelconference rooms, catering halls, con-vention halls and other similar facili-ties while they are being used exclu-sively for functions where the publicis invited primarily to promote andsample tobacco products, and servingfood and drink is incidental to such

vocation or charitable activity;l. All indoor arenas;m. Zoos; andn. Bingo facilities.

Smoking is also prohibited (1) in out-door ticketing, boarding, and platformareas of railroad stations operated byMTA and its subsidiaries; (2) within 100feet of the entrance, exit, or outdoor ar-eas of an elementary or secondaryschool; (3) in most playgrounds duringdaylight hours when children arepresent; and (4) on the grounds of gen-eral hospitals and residential health carefacilities or within 15 feet of the entranceor exit to their buildings or grounds,except that patients and their visitorsmay smoke within designated smokingareas not within 30 feet of any build-ing structure.

2. Posting of Signs“No Smoking” or “Smoking” signs, orthe international “No Smoking” sym-bol, must be prominently posted andproperly maintained by the owner, op-erator, manager or other person hav-ing control of such area where smok-ing is regulated. The owner, operatoror manager of a hotel or motel thatchooses to develop and implement asmoking policy for rooms rented toguests must post a notice in the re-ception area of the establishment asto the availability, upon request, ofrooms in which no smoking is al-lowed.

3. ExceptionsThe Clean Indoor Act’s restrictions donot apply to the following locationsunder the following conditions:

* Such registration remains in effect for one year and is renewable only if: (a) in the precedingcalendar year, the cigar bar generated 10% or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors, and (b) the cigar bar has notexpanded its size or changed its location from its size or location since December 31, 2002.

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purpose. The sponsor or organizer ofthe event must give notice in any pro-motional material or advertisementsthat smoking will not be restricted,must prominently post notice at theentrance of the facility, and must pro-vide notice to the appropriate enforce-ment officer at least two weeks prior tosuch function. A facility may sched-ule no more than two days in a calen-dar year for these events.

Although excepted from the statutorysmoking prohibition, the owner, op-erator or manager of such places re-tains the right to prohibit smoking inall or some of these facilities.

4. Local LawsSmoking is not permitted where it isprohibited by any other law, rule, orregulation of any State agency or anypolitical subdivision of the State.Counties, cities, towns and villagesmay adopt and enforce additional lo-cal laws, ordinances, and regulationswhich regulate smoking if those lawsare at least as strict as the Clean In-door Air Act.

C. WaiversThe enforcement officer may grant waiv-ers from the provisions of the Clean In-door Air Act where the applicant estab-lishes that compliance with a specific pro-vision would cause undue financial hard-ship or that other factors exist which wouldrender compliance unreasonable.

D. Enforcement and PenaltiesIt is unlawful for an employer whose placeof employment is subject to the Act to failto restrict smoking in such place of em-ployment. The Act provides an affirma-tive defense to employers who have madegood faith efforts to ensure that their em-ployees comply with the law.

It is unlawful for the owner, manager, op-erator, or other person having control ofan area covered by the Act to fail to com-ply with the Act. It is an affirmative de-fense that during the relevant time, ac-tual control of the area was exercised byanother entity or person. The owner,manager, operator, or other person hav-ing control of a covered area must inform,or designate an agent who is responsiblefor informing, individuals smoking in ar-eas where smoking is prohibited that theyare in violation of the law.

Any person may register a complaint withthe appropriate enforcement officer, asdefined above. Following a hearing, theenforcement officer for a city or countyhealth department can assess a penaltyof up to $1,000 for each violation. In ar-eas where the State Department of Healthis the enforcement officer, a fine of up to$2,000 may be assessed. Any person whois aggrieved by the decision of an enforce-ment officer other than the Commissionerof the Department of Health may appealto the Commissioner to review the deci-sion within 30 days of the decision.

The enforcement officer, after any appealis determined, may bring a court actionto recover the civil penalty imposed. Thedecision of any enforcement officer is re-viewable in court in an Article 78 proceed-ing.

III. Legal Activities Law

The Legal Activities Law amends the NewYork Labor Law to prevent employers fromtaking adverse employment action againstemployees who, off-the-job, legally useconsumable products or engage in politi-cal, recreational, union, and certain otherlegal activities.


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employment agencies may not dis-charge, refuse to hire, or otherwise dis-criminate against an individual withregard to compensation, promotion, orother terms, conditions, or privilegesof employment because the individual:

a. engages in political activities;b. uses consumable products;c. engages in recreational activities;ord. is a member of a union or exer-cises any statutory right concern-ing union activity.

Items (a) through (c) are protected ac-tivities only if the activity occurs out-side of work hours, off the employer’spremises, and without using theemployer’s equipment or other prop-erty.

The prohibition against discriminationon the basis of an employee’s unionactivity is undoubtedly pre-empted bythe federal National Labor RelationsAct, which contains a similar prohibi-tion.

2. ExceptionsSeveral types of activities are exemptfrom the law’s anti-discrimination pro-tections. An activity is not protectedif it:

a. creates a material conflict of in-terest relating to the employer’strade secrets, proprietary informa-tion, or other proprietary or busi-ness interest;b. is a knowing violation of a col-lective bargaining agreement pro-vision concerning ethics, actual orpotential, conflicts of interest, or theproper discharge of official duties;c. violates a workplace smokingpolicy instituted under the CleanIndoor Air Act; or


A. Definitions1. Political Activity“Political activity” means running forpublic office, campaigning for a candi-date for public office, or participatingin fund-raising for a candidate, politi-cal party, or political advocacy group.

2. Recreational Activity“Recreational activity” means any law-ful, leisure time activity generally en-gaged in for recreational purposes andfor which the employee receives nocompensation. “Recreational activity”includes, but is not limited to, sports,games, hobbies, exercise, reading, andwatching television or movies.

3. Work Hours“Work hours,” for purposes of the legalactivities law, includes all time duringwhich an employee is expected to beworking and all time an employee ac-tually is working, including paid andunpaid breaks and meal periods. Thisdefinition of “work hours” applies onlyto this law and does not affect the de-termination of hours worked for com-pensation purposes.

4. Consumable ProductsThe term “consumable products” isused in the new law, but is not de-fined separately. Given the history ofthe statute, the term certainly is in-tended to include tobacco products.Other substances, such as food, alco-hol and prescription drugs, presum-ably are included as well.

B. Statute1. ScopeEmployers and employment agenciesare prohibited from discriminatingagainst individuals because of their le-gal activities off- the-job. Unless oth-erwise provided by law, employers and

NIXON PEABODY LLP Smoking / Legal Activities • Page 6Revised 2/14

d. violates a collective bargainingagreement or a certified or licensedprofessional’s contractual obligationto work exclusively for a single em-ployer if the professional earns morethan a specified annual amount. (In1992, the professional must haveearned at least $50,000. Thethreshold amount is adjusted an-nually based on the Consumer PriceIndex.)

In addition, the employer lawfully mayact based on the belief that:

1. a statute, regulation, ordinance,or other government mandate re-quired the action;2. the action was permissible un-der an established substance abuseor alcohol program or workplacepolicy, collective bargaining agree-ment, or professional contract; or3. the individual’s actions weredeemed by an employer or previ-ous employer to be illegal or to con-stitute habitually poor performance,incompetency or misconduct.

Individuals having professional servicecontracts with employers are exemptfrom the statute’s protection if theunique nature of the services to be per-formed allows the employer to limit theindividual’s off-duty activities.

The statute does not define the terms“trade secret” or “proprietary informa-tion,” nor does it explain the scope andintent of some of the exceptions. Thefull extent of the restrictions on em-ployers in this area will not be knownuntil the courts are called upon to in-terpret the statute.

C. Judicial InterpretationAn interesting issue that has received

some notoriety is whether "dating" or"personal relationships" are "recre-ational activities" that would be cov-ered under the Legal Activities Law.The issue typically arises when a ter-minated employee brings a lawsuit al-leging that the employee was termi-nated in violation of the Legal Activi-ties Law because he or she had a ro-mantic relationship with a co-workeror supervisor.

All appellate courts which have ad-dressed the issue to date have decidedthat personal relationships are not“recreational activities” and thus arenot protected by the Legal ActivitiesLaw. See State of New York v. Wal-Mart Stores, 207 A.D. 2d 150 (3d Dept.1995); Bilquin v. Roman CatholicChurch, 286 A.D. 2d 409 (2d Dept.2001); Hudson v. Goldman Sachs &Co., Inc., 283 A.D. 2d 246 (1st Dept.2001), later proceeding, 304 A.D. 2d315 (1st Dept. 2003). The federal Sec-ond Circuit Court of Appeals also hasaccepted the state court’s reasoning onthis subject. See McCavitt v. SwissReinsurance America Corp., 237 F. 3d166 (2d Cir. 2001). The New York StateCourt of Appeals, which is the final ar-biter of the issue, has not yet ruled onthe issue.

D. Penalties and EnforcementThe State Attorney General has author-ity to enforce the statute by seekingan injunction to prevent employer ac-tions which violate the law. A courtalso may impose a civil penalty of $300for the first violation and $500 for eachsubsequent violation.

In addition, an aggrieved individualmay sue in court for equitable reliefand damages.

NIXON PEABODY LLP NYS WARN Act • Page 1Revised 2/14

CHAPTER 15 - WORKER ADJUSTMENT ANDRETRAINING NOTIFICATION ACT

I. Introduction

The New York State Worker Adjustmentand Retraining Notification Act (“NYWARN Act”) requires covered employersto provide 90 days’ advance notice toworkers who will be affected by a masslayoff, plant closing, or relocation. Thescope of the NY WARN Act is broader thanthat of the federal WARN Act with respectto the size of covered employers, the sizeof the workforce reduction that triggersthe Act, and the length of advance noticethat must be provided by employers.

II. Coverage

The NY WARN Act applies to private em-ployers with (1) 50 or more full-time em-ployees or (2) 50 or more employees thatwork in the aggregate at least 2,000 hoursper week. Part-time employees are ex-cluded when determining if an employerhas the requisite 50 full-time employees.For purposes of this Act, part-time em-ployees are those employees who workan average of less than 20 hours per weekor who have been employed for less thansix of the twelve months preceding thedate on which notice is required.

III. Statute

A. Triggering EventsCovered employers must provide 90 days’advance notice to affected workers, unionrepresentatives, and specified governmentagencies in the event of a mass layoff,plant closing, or relocation.

A “plant closing” is the permanent or tem-porary shutdown of a single employmentsite, or one or more facilities or operat-ing units within a single employment

site, that results in an employment lossof 25 or more full-time employees dur-ing any 30 day period.

A “mass layoff” is a reduction in forcewhich results in an employment loss ata single employment site of either: (1) atleast 33% of the employees (excludingpart-time employees) which amounts toat least 25 employees (excluding part-time employees) or (2) at least 250 full-time employees, during any 30 day pe-riod.

A “relocation” is the removal of all or sub-stantially all of the employer’s industrialor commercial operations to a differentlocation at least 50 miles away.

Under certain circumstances, an em-ployer may avoid creating an employmentloss where a plant closing or mass layoffis caused by the relocation or consolida-tion of part or all of the employer’s busi-ness. Before the closing or mass layoff,the employee must be offered a transferto a different employment site within areasonable commuting distance with nomore than a six-month break in employ-ment, or must accept a transfer to a dif-ferent employment site regardless of dis-tance within 30 days of the offer or theclosing or mass layoff, whichever is later.

B. Notice RequirementsEmployers must provide at least 90days’ advance written notice of a masslayoff, plant closing, or relocation to (1)affected employees and their union rep-resentatives, if any; (2) the New YorkState Department of Labor; and (3) thelocal workforce investment board for thelocality in which the mass layoff, plantclosing, or relocation will occur. Un-


like the Federal WARN Act, notice neednot be provided to the chief elected offi-cial of the municipality that is affected.

The contents of the notice itself must meetthe requirements of the federal WARN Act.Employers who mail the notice to the af-fected employee’s last known address,either by first class or certified mail, orwho include the notice in the employee’spaycheck, will be considered to have usedan acceptable method of notifying theaffected employee.

Notice to the New York Department ofLabor can be mailed to:

Richard GrossiNew York State Department of LaborBuilding 12, Room 436State Office CampusAlbany, New York 12240

Mailing addresses for local workforce in-vestment boards can be found on theDepartment’s website at:www.labor.ny.gov/workforcenypartners/lwia/localboards.shtm.

The Commissioner has taken the posi-tion that employers who conduct a masslayoff, plant closing, or relocation lessthan 90 days after the effective date ofthe Act are obligated to have provided therequired 90 days’ advance notice, eventhough such notice would have been is-sued before the Act’s effective date.

C. Exceptions to Notice RequirementsThe Act sets forth several circumstancesunder which the notification period maybe reduced to less than 90 days. If anemployer is unable to provide the full 90days’ notice for any of these reasons, ac-cording to the statute, the employer stillmust provide the notice as soon as prac-

ticable and, at that time, also provide abrief statement regarding the basis forreducing the notice period.

Specifically, reduced notice of a plantclosing may be provided if (1) the needfor notice was not reasonably foresee-able at the time the notice would havebeen required; (2) the plant closing is ofa temporary facility or the plant closingor mass layoff is the result of the comple-tion of a particular project or undertak-ing, and the affected employees werehired with the understanding that theiremployment was limited to the durationof that facility or project or undertaking;(3) the plant closing or mass layoff is dueto a natural disaster such as flood, earth-quake, or drought; or (4) the plant clos-ing or mass layoff constitutes a strike ora lockout not unintended to evade therequirements of the Act. Employers arenot required to provide written notice ifthey are permanently replacing an eco-nomic striker pursuant to their rightsunder the National Labor Relations Act.

Reduced notice of a plant closing alsomay be provided if the employer was ac-tively seeking capital or business at thetime the notice would have been required,and the capital or business, if obtained,would have enabled the employer to avoidor postpone the termination of employ-ees, and the employer reasonably and ingood faith believed that providing the re-quired notice would have precluded itfrom obtaining the needed capital orbusiness.

An employer is not required to give thenotice required by the Act if a relocation,mass layoff, or employment loss is causedby a physical calamity or an act of ter-rorism or war.

www.labor.ny.gov/workforcenypartners/lwia/localboards.shtm


D. Aggregation of Employment LossesWithin a 90-day PeriodUnder certain circumstances, a 90-dayperiod will be used to determine whethera plant closing or mass layoff has oc-curred. Employment losses for two ormore groups of employees at a singleemployment site, each of which has fewerthan the minimum number of employ-ees necessary to trigger the Act’s require-ments, but which in the aggregate meetor exceed that minimum, and which oc-cur within any 90 day period, will be con-sidered to be a covered plant closing ormass layoff. An employer can avoid thispresumption only if it demonstrates thatthe employment losses are the result ofseparate and distinct actions and causesand are not an attempt to evade the re-quirements of the Act.


An employer who fails to give the requirednotice to an affected employee and his/her union representative is liable to theemployee for back pay and the value ofthe cost of any lost benefits, includingthe cost of any medical expenses incurredby the employee that would have beencovered by an employee benefit plan.Back pay and liability for the cost of lostbenefits will be calculated for the dura-tion of the violation, up to a maximum of60 days, or one half of the days the em-ployee was employed by the employer,whichever is smaller. The amount of anemployer’s liability will be reduced by anywages paid by the employer during theperiod of the violation, any voluntary andunconditional payments by the employerto the employee, and any payments tothird parties or trustees on behalf of theemployee, such as payments for premi-ums or pension contributions.

Affected employees, local government,and employee representatives may bringa civil lawsuit to seek relief for a violationof the Act. The court may award attor-neys’ fees to a prevailing plaintiff.

An employer who fails to provide the re-quired notice to the Department will beliable for a civil penalty of up to $500 perday of violation. Penalties will not beimposed if the employer pays all affectedemployees the amounts for which theemployer would be liable within threeweeks of the date that the mass layoff,relocation, or employment loss was or-dered.

The Commissioner may issue an orderafter an administrative hearing whichassesses liability and will include penal-ties if a violation is found. The Commis-sioner may reduce the amount of theemployer’s liability or penalties if theemployer proves its actions or omissionswere made in good faith and that theemployer had reasonable grounds forbelieving that it was not in violation. Inmaking his/her determination, the Com-missioner will consider the employer’ssize, hardships imposed upon the af-fected employees, mitigation efforts by theemployer, and the grounds for theemployer’s belief.

V. Administering Agency

The Act is administered by the New YorkDepartment of Labor. The Commissionermay bring administrative proceedingsagainst an employer under the Act. TheCommissioner has the authority to ex-amine all employer information necessaryto determine whether a violation of theAct has occurred, including the validityof any defense.

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This chapter discusses additional devel-opments in state law that may affect someor all private employers in varying de-grees.

I. Employment Of SecurityGuards

A. Introduction

In 1992, the New York State Legislaturepassed the Security Guard Act, whichcreates standards for the employment ofsecurity guards. After several publicizedincidents where security guards commit-ted serious crimes against the people orproperty they were hired to protect, theLegislature decided to regulate the indus-try by creating a security guard registrywithin the Department of State, impos-ing training requirements, and by pro-hibiting the employment of unregisteredguards.

The Act covers virtually all persons orentities employing security guards. Theregistration requirement and the employ-ment restrictions became effective Janu-ary 1, 1994. Regulations implementingthe Act were issued in 1993.

B. Coverage

1. Security Guard

A “security guard” is a person otherthan a police officer, employed by a“security guard company” who pro-tects individuals and/or property, de-tects or deters unlawful activity, pro-vides street patrol service, or respondsto security alarm systems. A personperforming one or more of these du-ties is considered to be a “securityguard” if the person wears a uniform

or insignia indicating security guardstatus, or carries a weapon, or spendsmore than 50% of his/her time carry-ing out security guard functions.

The definition of "security guard" doesnot include persons who are other-wise subject to regulation with respectto training and registration by the fed-eral government, or persons provid-ing security guard services on a vol-untary basis.

2. Security Guard Company

The law defines “security guard com-pany” as a person, firm, limited liabil-ity company, corporation, public en-tity, or any portion or subsidiary em-ploying one or more security guards,whether those guards are self-em-ployed, employed on a contractualbasis by another person or entity, orare employees functioning as securityguards for their own employers.Neighborhood crime prevention pro-grams are not included in the defini-tion of “security guard company."

The Act does not apply to a not-for-profit security guard company or pub-lic entity which hires security guardsfor specific events solely for its ownproprietary use and which employssuch security guards only on a tem-porary basis for a total period not ex-ceeding 15 days per year.

C. Statute

1. Registration

The law creates a computerized regis-try of security guards within the De-

CHAPTER 16 - ADDITIONAL EMPLOYER REQUIREMENTS

Additional Employer Requirements • Page 1Revised 2/09

NIXON PEABODY LLP Additional Employer Requirements • Page 2Revised 2/04

partment of State. Any person desir-ing to work as a security guard mustfile an application with the Depart-ment, including two photographs andtwo sets of fingerprints. The Depart-ment will verify, among other things,that the applicant has not been con-victed of a serious offense and has notbeen discharged from a correctionalor law enforcement agency. If the De-partment approves the application, itwill issue to the individual an officialregistration card.

Before hiring a security guard, em-ployers must verify with the Depart-ment of State that the individual hasa valid registration card on file. If theindividual does not have a valid cardon file, then the employer must filewith the Department an applicationfor a registration card completed bythe applicant. The employer must alsocertify to the Department that the em-ployer has exercised due diligence toverify the information contained in theapplication and that the applicant hascompleted the required pre-assign-ment training. The application mustinclude two photographs and two setsof fingerprints of the applicant, andrelated fees.

2. Requirements for Applicants

In order to be eligible for registrationas a security guard, applicants mustmeet the following criteria:

a. be at least 18 years old;b. be a citizen of the U.S. or a resi-dent alien;c. be of good moral character andfitness;d. not have been convicted of a seri-ous offense;e. not have been discharged from acorrectional or law enforcementagency for incompetence or miscon-duct;

f. not have a physical or mentaldisability, or a disability due to in-toxication or the use of, addictionto, or dependence on alcohol ordrugs, which renders the applicantunable to perform the essentialfunctions of the position with orwithout reasonable accommoda-tion, or who, as determined by theDepartment, poses a direct threatto health or safety;g. not have been declared incom-petent by any court by reason ofmental disease or defect which hasnot been removed; andh. provide certification that he orshe has completed at least eighthours of pre-assignment training.

The training requirement may bewaived if (1) the applicant provides ap-propriate documentation that he orshe was subject to training require-ments which meet or exceed that re-quired by the Act, (2) the securityguard is a corrections officer of a statecorrectional facility, a bridge and tun-nel officer, sergeant or lieutenant ofthe Triborough bridge and tunnel au-thority, a uniformed court officer ofthe unified court system, a courtclerk, or a deputy sheriff having thepower of a peace officer; (3) the secu-rity guard is a former police officer orpeace officer who has been retired forten years or less or who can provecompletion of specified training re-quirements; or (4) the security guardcompany seeks to employ the appli-cant on a proprietary basis for its ownuse and documents that training isnot directly relevant to the applicant'sjob and responsibilities, and the ap-plicant will not wear a uniform, berequested to carry a gun, or spend amajority of time in contact with thepublic.

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fense or misdemeanor or, who, inany state, has been denied autho-rization to act as a security guard,or whose authority has been sus-pended or revoked on groundswhich would be a basis for deny-ing, suspending, or revoking a reg-istration card in New York State.

Employers who wish to employ se-curity guards should also checkwith the Department of State todetermine whether they must belicensed by the Department as awatch, guard, or patrol agency un-der existing New York State law re-quirements.

b. Insurance

Persons and non-public entitiesemploying security guards mustfile with the Department a certifi-cate of insurance showing compre-hensive liability coverage for deathand personal injury, including falsearrest, false imprisonment, mali-cious prosecution, libel, slander,and “violation of right of privacy,”in amounts of at least $100,000per occurrence and $300,000 in theaggregate.

4. Advisory Council

The Act creates a Security Guard Ad-visory Council to recommend to theSecretary of State rules and regula-tions regarding:

a. approval of training schools;b. training course content and re-quirements;c. qualifications of training in-structions; andd. implementation of the statute.The Department of State issuedregulations interpreting the Act inDecember 1993.

Within 90 working days of being hiredas a security guard, the guard mustcomplete an on-the-job trainingcourse consisting of a minimum of 16hours of training generally relating tothe security guard's specific duties,the nature of the workplace, and theemployer's requirements. In addition,each guard must complete an eighthour annual in-service training pro-gram.

Guards seeking special authorizationto carry a firearm must complete a 47-hour firearms course plus an eight-hour in-service training program overand above the training required an-nually for unarmed guards. Certainsecurity guards who are also peaceofficers are exempt from this addi-tional training requirement.

Only entities certified and approvedby the Department can provide secu-rity guard training. Entities eligibleto provide training include securityguard training schools, schools whichprovide security guard training pro-grams, and security guard companies.Thus, employers may provide the re-quired training if they are approvedby the Department of State to do so.

3. Duties of Employers

a. Limitations on Hiring

Under the Act, employers are pro-hibited from hiring unregisteredsecurity guards unless the em-ployer itself files the securityguard’s application and verifies theinformation contained in it as dis-cussed in Section C.1, supra.In addition, “security guard com-panies” cannot knowingly employas a security guard a person whohas been convicted of a serious of-


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The Division of Criminal Justice Ser-vices finalized its regulations imple-menting the Act in January 1994.

D. Enforcement

The Department of State is responsiblefor enforcing the registration, trainingand hiring provisions of the SecurityGuard Act.

Employers face criminal penalties if theyviolate the Act. It is a misdemeanor topermit or authorize the employment ofan individual in violation of the statute.In addition, it is a misdemeanor to act asan unauthorized security guard or toknowingly and willfully file a false appli-cation.

The Department may also bring an ac-tion in State Supreme Court to enjointhe employment of an unlicensed secu-rity guard or for an order directing thesecurity guard company to remedy theviolation.

The Department has authority to revokeor suspend a security guard’s registra-tion if:

1. the guard is convicted of a seriousoffense;2. the application contained materialfalse statements or omissions whichwould have resulted in denial of theapplication;3. the guard violates the statute orregulations promulgated under it; or4. employment of the guard “consti-tutes a danger to the health, safety,or well-being of the public.”

A first offense is punishable by a $1,000fine and/or six months imprisonment.Subsequent violations are punishable bya $2,500 fine and/or one year in prison.


E. Record-Keeping

For each security guard currently em-ployed and for one year after any guardhas been discharged or has resigned orretired, “security guard companies” mustmaintain on file a copy of the guard’sapplication for a registration card, proofof due diligence to verify the information,one photograph of the guard, and theguard’s training record. At the end ofthis time period, according to the Act,the “security guard company" must de-stroy these records. While the statutedoes not explicitly require "security guardcompanies" to retain a copy of a guard’sregistration card, it would be advisablefor employers to keep a copy of this card.

All security guard companies must main-tain "books and records of employees whoare security guards" and shall, upon re-quest, make such books and records avail-able to the Secretary of State.

In addition, each January, “securityguard companies” must provide the De-partment with a list of all security guardsemployed by the company. The companymust also notify the Department, on aprescribed form, within 15 days after asecurity guard is hired, discharged, re-signs, or retires.

F. Administering Agency

The Security Guard Act is administeredby the Department of State and the Divi-sion of Criminal Justice services. Infor-mation can be obtained by calling theDepartment of State, Division of Licens-ing Services at:

1 Commerce Plaza99 Washinton Ave., 6th FloorAlbany, New York 12231(518) 474-4429or by visiting their website at:www.dos.ny.gov/licensing/index.html


II.Advisory Panel On HIV/HBVInfected Health Care Workers

In 1992, sparked by public concern overwhether HIV/HBV infected health careproviders pose a health danger to pa-tients, the New York State Legislature cre-ated the Health Care Worker HIV/HBVAdvisory Panel within the State of De-partment of Health. At the request of ahealth care worker infected with HIV(which causes AIDS) or HBV (whichcauses hepatitis B), the panel will reviewthe worker's risk of transmitting infec-tion to others through his or her medi-cal practice. If the infected worker is em-ployed at a facility licensed by the De-partment, the panel may review the work-ers' practice only after the facility hascompleted its own review of the scope ofthe worker's practice.

If the panel finds that the infected healthcare worker's practice "poses a significantrisk of harm to patients," the panel willmake recommendations concerning theinfected worker's ability to continue prac-tice. Recommendations may includetraining, monitoring, reassignment, orpractice restrictions, and must be the leastrestrictive response necessary. If thepanel recommends any of the above ac-tions, the panel has authority to informthe facility employing the infected workerif the worker does not do so himself orherself. If the worker fails to comply withthe panel's recommendations, the panelmay inform the relevant licensing, regis-tration or certification boards.

The infected health care worker has theright to have a union representative orother representative present at any meet-ing with the panel. In addition, the in-fected worker may request that theworker's personal physician be appointeda member of the panel.

III. Lie Detectors (PsychologicalStress Evaluators)

A. Coverage

New York does not regulate the use of liedetectors, i.e., polygraph tests which arebased on blood pressure, pulse rate, gal-vanic skin response, and breathing.These tests are regulated and their useseverely limited by the federal EmployeePolygraph Protection Act of 1988. Em-ployers should consult federal law beforeusing any type of lie detector examina-tion.

New York does, however, prohibit em-ployers from administering or using theresults of "psychological stress evaluator"examinations to evaluate employees orprospective employees. A "psychologicalstress evaluator" is any mechanical de-vice or instrument which purports to de-termine the truth or falsity of statementson the basis of vocal fluctuations or vo-cal stress.

It is unlawful for any individual to know-ingly administer or participate in the ad-ministration of a psychological stressevaluator examination of an employee ora prospective employee. This prohibi-tion applies to any psychological stressevaluator examination conducted withinNew York State, regardless of whetherthe employee or prospective employee isemployed or is seeking employment out-side the State.

The prohibition against the use of psy-chological stress evaluators applies onlyto employee-employer relations. Thus,police officers engaged in criminal inves-tigations are permitted to conduct psy-chological stress evaluator examinationsduring the course of an investigation.


B. Prohibited Retaliation/Discrimination

Employees may not be discharged, dis-ciplined, or discriminated against in anymanner because of filing a complaint ortestifying in any proceeding or any ac-tion involving a violation of the provisionsof the statute.

C. Penalties/Other Relief Measures

A first violation of the statue is consid-ered a Class B misdemeanor. Any sub-sequent conviction is a Class A misde-meanor.

Any employee or prospective employeedamaged as a result of a violation of anyprovisions of the statute may bring anaction for damages in State SupremeCourt.

Any employee discriminated against inviolation of the statutory provision pro-hibiting discharge, discipline, or discrimi-nation is entitled to be compensated bythe employer for double the amount ofany lost wages and benefits, and rein-stated to employment if previously ter-minated.

D. Record-Keeping

There are no specific record-keeping ob-ligations.

E. Administering Agency

The law prohibiting psychological stressevaluators is not administered by a Stateagency.

IV. Health InsuranceContinuation andConversion Rights(New York's Mini-COBRA)

A. Introduction

New York State has a law similar to thefederal Consolidated Omnibus Budget

Reconciliation Act ("COBRA"), which en-ables employees and their eligible depen-dents to continue their group health in-surance coverage under certain circum-stances and allows them to convert theirhealth insurance from group coverage toindividual coverage when their group cov-erage terminates. These rights are imple-mented through the New York InsuranceLaw and the New York Labor Law.

B. Coverage

All group policies providing hospital, sur-gical or medical expense insurance, andgroup contracts issued by a hospital ser-vice, health service, or medical expenseindemnity corporation, must contain pro-visions setting forth continuation andconversion rights. Generally, continua-tion and conversion rights are triggeredwhen an insured's health insurance cov-erage ceases because of termination ofemployment or membership in the classeligible for coverage under the policy.

The state continuation rules do not ap-ply if continuation benefits are availableunder the federal COBRA. Generally,federal COBRA applies to group healthcare plans covering 20 or more employ-ees. New York’s “mini-COBRA” coversfully-insured group health insuranceplans which cover fewer than 20 employ-ees and also allows eligible individualswho have exhausted their federal COBRAbenefits to continue coverage under NewYork law, for up to a total of 36 monthsof continuation coverage.

C. Statute

1. Continuation Rights

An employee or the employee's eligibledependent who loses group health in-surance coverage is entitled to con-tinued coverage under the grouppolicy, without providing evidence of

NIXON PEABODY LLP

insurability, under the following cir-cumstances:

a. termination of employment;b. the death of the employee;c. the divorce or separation of theemployee from his or her spouse;d. the employee becomes entitledto Medicare benefits; ore. the employee's child ceases tobe a dependent child under thepolicy.

Continuation rights are subject to cer-tain conditions and limitations. Forexample, continuation coverage is notavailable for:

a. any person who is covered byMedicare; orb. an employee or dependent whobecomes covered as an employeeor dependent of another insuredor uninsured arrangement whichprovides comparable coverage, andwhich does not contain any exclu-sions for pre-existing conditions ofthe employee or dependent.

To take advantage of continuationrights, the employee must requestcontinuation, in writing, within the60-day period following the later of:

a. the date of termination; orb. the date the employee is sentnotice by first class mail of his con-tinuation rights.

The employee must remit insurancepremiums to the employer for con-tinuation coverage. The employermay charge up to 102% of the grouprate for the benefits being continuedunder the group policy. Theemployee's written election of continu-ation, together with the first premiumpayment, must be given to the em-ployer within 60 days of the date the

employee's benefits would otherwisehave terminated.

Generally, continuation coverage willterminate 36 months after the datethe employee's coverage wouldotherwise have terminated because ofloss of employment. In the case of aneligible dependent of an employee,continuation coverage will terminate36 months after the date suchdependent's coverage would otherwisehave terminated by reason of:

a. the death of the employee;b. the divorce or separation of theemployee from his or her spouse;c. the employee becoming entitledto Medicare benefits; ord. a dependent child ceasing to bea dependent child under the gen-erally applicable requirements ofthe policy.

2. Conversion Rights

Conversion rights enable a personwho loses coverage under a grouphealth insurance policy to “convert”such insurance to an individualpolicy without having to submit evi-dence of insurability. Generally, con-version rights are triggered under thesame circumstances as continuationrights. Many of the same limitationsapply. A person may also elect to ex-ercise his conversion rights when hiscontinuation rights expire.

To assert conversion rights, the per-son must apply for individual cover-age and remit premiums within 45days after the termination of groupcoverage. The employer or insurermust give written notice of a person’sconversion rights within 15 days be-fore or after group coverage is termi-nated. The notice should be sent by



first class mail to the person’s lastknown address. Failure to give timelynotice will extend the period in whichthe person can elect to convert to anindividual policy to 45 days from thedate notice was sent, provided thenotice is sent more than 15 days butless than 90 days from the date of ter-mination. However, if notice is notsent within 90 days from the date oftermination of group coverage, theright to exercise the conversion privi-lege expires at the end of 90 days.

3. Employer Responsibilities

Employers must notify terminatedemployees, in writing, of the exact dateof cancellation of their health insur-ance coverage, no more than five work-ing days after the date their employ-ment terminates. It is strongly rec-ommended that the employer also no-tify employees of the employees’ con-tinuation rights. Employers are re-quired to remit premiums to insurerson behalf of individuals exercisingtheir right to continuation coverage.Employers must also notify employ-ees of the termination or substitutionof a group accident or health insur-ance policy.

In addition to the above law, New YorkState has enacted legislation which issimilar to the federal Health InsurancePortability Act of 1996. Through a verycomplex set of rules, the state law im-poses various restrictions upon grouphealth and other insurance plans. Allinsurers who offer health insurance havean obligation to issue certificates of cov-erage to employees regarding the lengthof coverage, including any waiting period,under the employer's insurance plan.The certificate of coverage must be issuedupon various triggering events, includ-

ing any time the individual ceases to becovered under the policy.

D. Employer Penalties/Other Relief Mea-

sures

An employer may be liable for penaltiesof up to $5,000 for failure to follow thenotice and remittance requirements of theLabor Law. In addition, the employermay be liable in a civil action for failingto comply with the notice requirementsand/or failing to timely remit premiumson behalf of individuals exercising theirright to continuation coverage. The em-ployer will be liable for “appropriate dam-ages,” which includes reimbursement formedical expenses which were not covereddue to the termination of the policy orthe employer’s failure to remit premiums.

V. Access to Personnel FilesNot Required by Law

An employer is under no legal obligationto allow an employee to review or makecopies of documents in his or her per-sonnel file.

VI. Leave For Bone MarrowDonation

An employer with 20 or more employeesat at least one site must grant leaves ofabsence to employees who work an aver-age of 20 or more hours per week andwho seek to undergo a medical procedureto donate bone marrow. There is no dis-cretion in granting the employee's re-quest, however, an employer can insiston a doctor's verification of the purposeand length of each leave for this purpose.Leaves cannot exceed 24 work hours (ap-proximately three work days) unless theemployer consents.


Employers may not retaliate against em-ployees because they have requested orobtained a leave to donate bone marrow.

VII. Leave For Blood Donation

Employers with 20 or more employeesmust allow employees who work at at leastone site an average of 20 or more hoursper week to take time off to donate blood.The employer may comply with this re-quirement in one of two ways: (1) Theemployer may grant the employee threehours of leave in any 12 month period.This leave cannot exceed three hours un-less the employer consents. (2) Alterna-tively, the employer may choose to allowits employees to donate blood during workhours at least two times per year at a con-venient time and place set by the em-ployer, such as a blood drive at theemployee’s place of employment. The em-ployer may not require the employee touse his or her accumulated personal, sick,vacation, or other existing accrued leavefor this donation. According to guidelinesissued by the Commissioner, the employermust pay the employee for his or her timespent in donating blood under this alter-native.

Employers may not retaliate against em-ployees because they have requested orobtained a leave to donate blood.

The Commissioner has issued detailednotice requirements for employers andemployees. Employers must notify em-ployees in writing of their right to takeblood donation leave. Such notificationmust be made in a manner that will en-sure that employees see it, such as byposting in a prominent spot in an areawhere employees congregate, inclusion ofnotice with employees’ paychecks, mail-ings, notices in employee handbooks, or

other comparable method. If notice is pro-vided directly to the employee, it must beprovided at the time of hire and annuallyno later than January 15th.

Employees may be required to give rea-sonable advance notice of their intendeduse of blood donation leave. Reasonableadvance notice will consist of notice pro-vided at least two or three working daysbefore the intended leave, with the longernotice required for off-premises blood do-nation leave. The employer may requirea longer advance notice period of up toten working days if necessary for job po-sitions which are essential due to opera-tional or legal requirements. The employermust notify all covered employees of thisextended notice requirement. Conversely,the employer must allow an employee togive a shorter advance notice if the em-ployee has a family or his/her own emer-gency need for blood donation.

VIII. Employer Awareness of Do-mestic Violence – Model Policy

The New York State Office for the Preven-tion of Domestic Violence (OPDV) has de-veloped a model workplace policy whichidentifies and prescribes practices thatwill promote safety in the workplace andrespond effectively to the needs of vic-tims of domestic violence. Although notmandated by law, employers are urgedto use the model policy to develop theirown specific policy to achieve these ob-jectives.

The model policy and other resources re-lated to prevention of domestic violenceare located on the OPDV website atwww.opdv.ny.gov. Employers may alsorequest brochures, posters, and otherlisted publications regarding domesticviolence and the workplace by writing to


the New York State Office for the Preven-tion of Domestic Violence, Alfred E. SmithBuilding, 80 Swan Street, 11th Floor,Room No. 1157, Albany, New York 12210,or by faxing a request to (518) 457-5810.

IX. Workplace Displays ofThe American Flag

No employer or its agent may dischargeor discriminate against an employee fordisplaying an American Flag on theemployee’s person or workstation, pro-vided such display physically does notsubstantially or materially interfere withthe employee’s job duties.

The Commissioner may assess an em-ployer who violates this law a civil pen-alty no less than $200 nor more than$2,000 dollars. This penalty is the onlypenalty which the Commissioner mayassess for such a violation. An employeemay bring a civil action within two yearsof a violation of this provision, to obtainrelief including reinstatement and resto-ration of seniority, payment of lost com-pensation, damages, and reasonable at-torneys’ fees. Before or upon commenc-ing such action, the employee is requiredto serve notice on the Attorney General.

X. Time Off To Vote

New York Elections Law provides that aregistered voter may take up to two hoursoff from work, with pay, to enable him/her to vote, if the employee does not havesufficient time to do so outside of work-ing hours. Time off is allowed only atthe beginning or end of the employee’sshift, unless the employee and employermutually agree otherwise. Additionaltime off, without pay, must also be al-lowed if the time is required to enablethe employee to vote. An employee is

deemed to have sufficient time to vote ifthe polls are open at least four consecu-tive hours before or after the employee’sshift. The employee must notify the em-ployer of his/her need for time off to voteno more than ten (10) days and no lessthan two (2) days before election day.Employers must conspicuously post anotice setting forth these provisions atleast ten (10) days before every election.The notice must remain posted until thepolls close on election day.

XI. Professional Employer Act

In September 2002, the Legislature passedthe Professional Employer Act, which be-came effective on March 23, 2003. Thislaw establishes regulatory requirementsfor Professional Employer Organizations(“PEOs”). Generally speaking, a PEO is anorganization, such as a staff leasing com-pany, that serves as the nominal employerof personnel working at a client’s worksite.Clients of PEO’s are businesses thatoutsource human resource functions suchas employee payroll and taxes, benefitsadministration, or regulatory compliance.Enactment of this legislation provides rec-ognition of the employment relationshipthat exists between PEOs and their worksite employees.

To be considered a PEO, an organizationmust expressly agree to co-employ, onan on-going basis, a majority of the em-ployees providing services for the client.The Act specifically excludes temporaryor supplemental staffing arrangementsand employment agencies from this defi-nition.

A PEO is required to have a written agree-ment with the client employer settingforth the responsibilities and duties ofeach. In the agreement, the PEO must

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reserve a right of direction and controlover the PEO’s employees at the client’swork site, except that the client mustmaintain such direction and control asis necessary to conduct the client’s busi-ness, discharge its fiduciary duties, orcomply with applicable licensures. ThePEO also must retain authority to hire,discipline or discharge work site employ-ees, and must assume responsibility forpayroll, taxes and benefits. Specifically,the PEO has a right and responsibilityto: (a) pay wages and collect, report andremit employment taxes of its work siteemployees from its own accounts; (b) payunemployment insurance as required bythe unemployment insurance law; and(c) secure and provide required workers’compensation coverage for its work siteemployees either in its own name or inits client’s name. Both the client andthe professional employer organizationare considered the employer for the pur-pose of workers’ compensation coverageand both are entitled to protection of theexclusive remedy provision of the work-ers’ compensation law. The PEO will bedeemed an employer for purposes of statelaw for the purpose of sponsoring wel-fare benefit plans for its work site em-ployees.

The PEO must provide written notice towork site employees of the general na-ture of the relationship between the PEOand the client employer.

All PEO’s operating within the state mustregister with the state Department of La-bor. There is a limited exemption forPEO’s domiciled out-of-state. Amongother registration requirements, the PEOmust pay an annual registration fee andmeet a minimum net worth requirementor post a bond or securities in an equiva-lent amount. The Act prohibits unregis-

tered organizations from referring tothemselves as a “professional employerorganization”, “PEO”, “staff leasing com-pany”, “employee leasing company”, “reg-istered staff leasing company” or “staffleasing services company”.

The Department of Labor may rescind,suspend or revoke the registration of aPEO failing to comply with the Act’s re-quirements.

The Department also may impose civilpenalties upon PEOs who violate the Act.The officers and agents of a PEO whoknowingly permit the PEO to violate theregistration requirements of the Act areguilty of a Class B misdemeanor.

A client of a PEO who enters into a PEOagreement with an organization whomthe client knows or should have knownis unregistered as a PEO despite beingrequired to register by law, has violatedthe Act. The client may be liable for civilpenalties up to $1,000 for the initial vio-lation and $5,000 for the second or sub-sequent violation.

XII. Information Security Breach and Notification Act

A. Introduction

In 2005, the Legislature formally recog-nized that thousands of New York resi-dents have been affected by identity theftand security breaches, i.e., the unautho-rized acquisition of their private infor-mation. The resulting harm often is mag-nified when the affected individuals arenot immediately informed of the securitybreach, and therefore are unable to takeimmediate steps to minimize the poten-tial harm of such breach. To addressthis serious concern, the Legislaturepassed the “Information Security Breach


and Notification Act” (“the Act”) as anamendment to the State general businesslaw and technology law.

B. Coverage

The Act covers all businesses and per-sons conducting business in New YorkState (as well as all state entities) whichown, license, or maintain computerized“private information” data. “Private in-formation” is defined by the Act as anyunencrypted information that can beused to identify a person and which con-tains any of the following: (1) social se-curity number; (2) driver’s license num-ber or non-driver identification cardnumber; or (3) account number, creditcard number, or debit card number incombination with any required securitycode, access code, or password that wouldpermit access to an individual’s finan-cial accounts. Private information alsoincludes encrypted versions of these typesof data where the encryption key also hasbeen compromised.

C. Notice of Breach

The Act requires owners and licensees ofprivate information to notify a State resi-dent “in the most expedient time pos-sible” when his or her private informa-tion has been, or is reasonably believedto have been, acquired by a person with-out authorization. Notice must be givendirectly to the affected resident, and maybe accomplished by written, telephonic,or, where the resident has expressly con-sented, electronic means. If the cost ofproviding such notice would exceed$250,000, or the class of affected resi-dents exceeds 500,000, or if the businessdoes not have sufficient contact informa-tion, the New York State Attorney Gen-eral may authorize certain specified al-ternative means of notice.

Any person or business which maintainscomputerized private information whichit does not own must notify the owner orlicensee of the data immediately after dis-covering that the private informationwas, or was reasonably believed to havebeen, acquired by a person without au-thorization.

The Act contains additional details re-garding notice and record-keeping re-quirements.

D. Delayed Notice

The notice required by the Act may bedelayed if a law enforcement agency de-termines that notification would impedea criminal investigation. Notice mustthen be given after the law enforcementagency determines that the notice wouldnot compromise the criminal investiga-tion.

E. Enforcement

The Act authorizes the New York StateAttorney General to bring a court actionto seek injunctive relief and damages foractual costs or losses incurred by per-sons who failed to receive notification inaccordance with the Act, including anyconsequential financial losses. Knowingor reckless violations of the Act also mayresult in civil penalties of up to $150,000.The remedies provided by the Act are inaddition to any and all other lawful rem-edies available.

F. Statute of Limitations

An action to remedy a violation of theAct must be brought within two yearsafter the date of the act complained of, orthe date of discovery of the act.

G. Effective Date

The Information Security Breach and No-tification Act was signed by Governor


Pataki on August 9, 2005, and becameeffective on December 7, 2005.

XIII.Release of EmployeeSocial Security Numbersand Personal Information

Businesses within New York State areprohibited from requiring individuals todisclose their Social Security numberunless the request falls into a categoryspecifically permitted by law. Employ-ers are permitted to request anindividual’s Social Security number forpurposes of employment, including theadministration of a claim, benefit, or pro-cedure related to the individual’s employ-ment, termination, retirement, workplaceinjury or unemployment insurance claim.Employers also may request Social Se-curity numbers when required for taxcompliance, criminal background checks,or internal or fraud investigation; wherethe individual consents to the disclosure;and as expressly required by law or incertain other enumerated circumstances.Once an employer acquires an employee’sSocial Security number, the employermust comply with additional restrictionsupon disclosure and dissemination of theemployee’s Social Security number andother personal identifying information.Unless otherwise required by law, anemployer may not (1) publicly post or dis-play an employee’s Social Security num-ber, (2) visibly print an employee’s So-cial Security number on any identifica-tion badge or card, including a time card,(3) place an employee’s Social securitynumber in files with unrestricted access,or (4) communicate an employee’s So-cial Security number, home address ortelephone number, personal e-mail ad-dress, Internet identification name orpassword, parent’s surname prior to mar-riage, or driver’s license number to the

general public. Social Security numbersmay not be used as identification num-bers for occupational licensing.

An employer who knowingly violatesthese requirements may face a civil pen-alty of up to $500. A violation of theserequirements is presumed to have been“knowing” if the employer has not put inplace any policies or procedures to safe-guard against the violation, includingprocedures to notify relevant employeesof these requirements.

XIV. Prohibited Audio andVideo Recordings

Effective July 5, 2006, the State Legisla-ture enacted a new law designed to pro-tect the privacy of employees while in theworkplace. The statute prohibits employ-ers from causing an audio or video re-cording to be made of an employee in arestroom, locker room, or room desig-nated by the employer for employees tochange their clothes, unless authorizedby court order. An exception is made forlaw enforcement personnel engaged inthe conduct of their duties. If an em-ployer is found liable in a civil action forviolating this law, the employer may besubject to injunctive relief and requiredto pay damages, attorney’s fees, and coststo a prevailing plaintiff.

XV. Military Spouse Leave

A. Introduction

Effective August 16, 2006, New York Stateamended the Labor Law to allow certainemployees to take up to 10 days of un-paid leave if the employee is the spouseof qualifying military personnel who ison leave.


B. Coverage

The law applies to all employers who have20 or more employees at at least one site.It applies to individuals, corporations,counties, towns, cities, school districts,public authorities, and all other govern-mental subdivisions.

The law applies to all employees who workan average of 20 or more hours per week.It covers all individuals employed at anysite owned by or operated by the em-ployer, but does not apply to indepen-dent contractors.

C. Statute

Eligible employees are entitled to take upto 10 days of unpaid leave. To be eligiblefor leave, the covered employee must havea spouse who is a member of the U.S.armed forces, national guard, or reserves.The employee’s spouse must be on leavefrom being deployed to a combat theateror combat zone of operations during aperiod of military conflict. For purposesof this law, “military conflict” is a periodof war declared by the United States Con-gress, or in which a member of a reservecomponent of the armed services is or-dered to active duty” pursuant to certainprovisions of federal law.The law does not address or require thatemployees provide the employer with ad-vance notice of a leave request.

D. Penalties/Other Relief Measures

Employers are prohibited from retaliat-ing against employees because they re-quest or obtain leave under this law. Thelaw does not address damages or otherrelief measures for violations of the law.The law does not affect an employee’srights with respect to any other employeebenefit provided by law.

XVI. Nursing Mothers' Rights

Employers must provide nursing moth-ers with reasonable unpaid break timeor permit them to use available paidbreak or meal time to express breast milk.This obligation lasts for up to three yearsfollowing childbirth. Employers mustmake reasonable efforts to provide a roomor location, in close proximity to the workarea, for the employee to express milk inprivate. The law also prohibits employ-ers from discriminating against employ-ees who choose to express breast milk inthe workplace.

XVII. Criminal Background Checks and Information

The New York Correction Law, Article 23-A, prohibits employers from discriminat-ing against persons previously convictedof one or more criminal offenses. Anemployer may not deny or adversely actupon employment because an individualhas a prior conviction unless (1) there isa direct relationship between one or moreof the previous criminal offenses and thespecific employment sought or held bythe individual; or (2) the granting orcontinuation of employment would in-volve an unreasonable risk to propertyor to the safety or welfare of specificindividuals or the general public.

In determining whether or not to denyemployment, the employer is required toconsider the following factors: (1) NewYork’s public policy of encouraging em-ployment of persons with criminal con-victions; (2) the specific duties and re-sponsibilities of the employment soughtor held by the individual; (3) the bear-ing of the underlying criminal offense


upon the individual’s fitness or ability toperform his/her job duties or responsi-bilities; (4) the time elapsed since thecriminal offense occurred; (5) the age ofthe individual at the time the criminaloffense occurred; (6) the seriousness ofthe criminal offense; (7) any informationproduced by the person or on his/herbehalf regarding his/her rehabilitationand good conduct; and (8) the employer’slegitimate interest in protecting prop-erty, and the safety and welfare of spe-cific individuals or the general public.

A person who has been convicted of acriminal offense and who is denied em-ployment may request a written statementof the reasons for the denial. The state-ment must be provided within 30 daysafter the request.

The New York General Business Law im-poses additional requirements upon em-ployers who use outside companies (con-sumer reporting agencies) to conductcriminal background checks of employ-ees and applicants. Employers who re-quest investigative consumer reportswhich include criminal backgroundchecks on job applicants must providethe applicant with a copy of Article 23-Aof the Correction Law. When an employerreceives a consumer report that reflectsa criminal conviction, the employer mustprovide the applicant or employee with aprinted or electronic copy of Article 23-Aof the Correction Law.

The New York Labor Law requires everyemployer to post a copy of Article 23-A ofthe Correction Law and any regulationsthat may be promulgated under that law.The posting must be in a place acces-sible to employees and in a visually con-spicuous manner.

XVIII. Protection of Crime Victims and Witnesses in Criminal Proceedings

The New York State Penal Law prohibitsemployers from discharging or penaliz-ing an employee because of the employee’sabsence from work when the employee isa victim of a crime or is subpoenaed as awitness to attend a criminal proceeding,and the absence from work was due to:(1) required attendance as a witness at acriminal proceeding; (2) consultationwith the district attorney; or (3) theemployee’s exercise of related rights asprovided by law. An employer may, how-ever, withhold the employee’s wages dur-ing such absence. The employee mustnotify the employer beforehand of his orher expected absence for this purpose.Upon the employer’s request, the partywho sought the employee’s attendancemust provide verification of theemployee’s service.

Crime victims protected by this provisioninclude the victim’s next-of-kin if the vic-tim died as a result of the crime, goodSamaritans, and persons who are seek-ing an application or enforcement of anorder of protection under the criminalprocedure law or family court act.

An employer who violates this provisionof the Penal Law is guilty of a Class Bmisdemeanor.


Topic What Must be Posted

(See Chapters for Coverage)

Source (See Chapters for addresses & telephones of nearest offices)

1. Minimum Wage Minimum Wage Poster NYS Dept. of Labor Div. of Labor Standards State Campus Albany, NY 12240 (518) 457-2730 www.labor.ny.gov

2. Discrimination State of New York Division of Human Rights Poster

NYS Div. of Human Rights One Fordham Plaza, 4th Floor Bronx, NY 10458 (718) 741-8400 www.dhr.ny.gov

3. Unemployment Insurance

Unemployment Insurance Poster #1A NYS Dept. of Labor Registration Unit State Campus Albany, NY 12240 (518) 485-8589 www.labor.ny.gov

4. Workers' Compensation and Disability Benefits

Workers’ Compensation and Disability Benefits Poster

Employers' Insurance Carrier

5. Employment of Minors Permitted Working Hours for Minors Under 18 Years of Age Notice

NYS Dept. of Labor Div. of Labor Standards State Campus Albany, NY 12240 (518) 457-2730 www.labor.ny.gov

6. Smoking Employers must permanently post Smoking or No Smoking signs, or the International No Smoking symbol, in every place where smoking is regulated by the Act.

NYS Dept. of Health Corning Tower, Empire State Plaza Albany, NY 12237 (800) 458-1158 www.health.ny.gov

7. Time Off to Vote Employers must conspicuously post notice of state law requirements regarding when employees may take time off from work to vote. The notice must be posted at least ten (10) days before election day and remain posted until the polls close.

NYS Board of Elections 40 N. Pearl Street, Suite 5 Albany, NY 12207 (518) 474-6220 www.elections.ny.gov (or see N.Y. Elections Law §3-110)

8. Criminal Background Information

Employers must post a copy of Article 23-A of the Correction Law in a visually conspicuous and accessible location at the workplace.

NYS Dept. of Labor Div. of Labor Standards State Campus Albany, NY 12240 (518) 457-2730 www.labor.ny.gov

XIX. NY State Posting Requirements For Private Employers

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INDEX

Acquired Immune Deficiency Syndrome (AIDS) ........................................... 5-3Administrative Employee, Definition ........................................................... 2-2Advertisement for Help ............................................................................... 5-2Alcohol, Use Off-the-Job .......................................................................... 14-5American Flag, Display in the Workplace ............................................... 16-10Annual Notice.......................................................................................... 1-10Applications for Employment ..................................................................... 5-2Apprentices, Minors ................................................................................... 3-3Arbitration, Non-Profit Hospitals and Residential Care Centers ................ 12-7Arrest Records ........................................................................................... 5-2Availability and Capability for Work ......................................................... 11-9Average Weekly Wage ............................................................................... 11-8Babysitter, Minors .............................................................................. 3-1, 3-2Bargaining Representative Selection ........................................................ 12-4Bargaining Unit, State Labor Relations Act .............................................. 12-5Base Period, Unemployment .................................................................... 11-7Benefit Charges, Unemployment .............................................................. 11-7Benefit Payments, Unemployment............................................................ 11-8Blood Donation Leave .............................................................................. 16-9Bona fide Occupational Qualification (BFOQ) ............................................. 5-5Bone Marrow Donation, Mandatory Leave ................................................ 16-8Breaks Not Required (rest periods) ............................................................. 4-2Breastfeeding, break time ...................................................................... 16-14Building Construction and Demolition, Safety and Health ......................... 8-1Building Repair, Safety and Health ............................................................ 8-1Call in Pay ................................................................................................. 2-6Casual Employment, Minors...................................................................... 3-2Charges to Employer Accounts, Unemployment ....................................... 11-7Child Model Permit .................................................................................... 3-3Clerical Worker, Definition ......................................................................... 1-1Collective Bargaining, Non-Profit Hospitals, Residential Care Centers ....... 12-7Commission Salesperson, Definition .......................................................... 1-1Compelling Family Reason, Unemployment ............................................. 11-8Compensatory Time ................................................................... (see Time Off)Compressed Air, Safety and Health ............................................................ 8-1Conviction Records .................................................................................... 5-2Correction Law, Article 23-A .................................................................. 16-14Crime Victim and Witness Protection ..................................................... 16-15Criminal Background Checks ................................................................ 16-14Day of Rest in Seven .................................................................................. 4-1Direct Deposit of Wages.............................................................................. 1-3Disability Benefits, Disqualification ......................................................... 10-1Disability Benefits, Employee Definition .................................................. 10-1Disability Benefits, Enriched ................................................................... 10-2Disability Benefits, Maximum .................................................................. 10-2

Index (i)Revised 2/14

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Index (ii)Revised 2/14

Disability Benefits, Minimum .................................................................. 10-2Disability Benefits, No Unemployment ..................................................... 10-2Disability Benefits, Payment of Disability Benefits, Reduction .................. 10-2Disability Benefits, Unemployed...................................................... 10-1, 10-3Discharge, Breach of Contract ................................................................. 13-1Discharge, Good Faith and Fair Dealing ................................................... 13-1Discharge, Tort Theory ............................................................................ 13-6Discrimination, Protected Categories .......................................................... 5-1Dismissal Pay, Unemployment ................................................................. 11-8Domestic Violence - Development of Model Policy ..................................... 16-9Domestic Violence Victim Status ................................................................ 5-1Eight Hour Day ......................................................................................... 4-1Elevator Employees, Safety and Health ...................................................... 8-1Employee Personal Information, Restrictions on Use .............................. 16-13Employee Social Security Number, Restrictions on Use .......................... 16-13Employee’s Right to Information ................................................................ 6-2Employer Contributions, Disability Benefits ............................................ 10-3Employer, Definition for Human Rights Law .............................................. 5-1Employer, Definition for Minimum Wage/Overtime .................................... 2-1Employer, Definition for State Labor Relations ......................................... 12-1Employer, Non-Profit Institution for Minimum Wage/Overtime ................... 2-1Employer, Posting Requirements............................................................ 16-16Employer, Public Works for Minimum Wage/Overtime................................ 2-1Employment at Will, Common Law .......................................................... 13-1Employment Certificates, Minors ........................................................ 3-2, 3-3Executive Employee, Definition .................................................................. 2-1Exemptions, FLSA .............................................................................. 2-1, 2-2Experience Rating, Unemployment .......................................................... 11-4Explosives, Safety and Health .................................................................... 8-1Extended Benefits, Unemployment .......................................................... 11-9Factories, Minors ....................................................................................... 3-4Factories, Safety and Health ...................................................................... 8-1Factors for Denying Employment ........................................................... 16-15Farm Work Permit, Minors ......................................................................... 3-3Fingerprinting ........................................................................................... 8-2Food Around Injurious Gases or Substances, Safety and Health................. 8-1Foundries, Safety and Health ..................................................................... 8-1Fraternity, Minors ..................................................................................... 3-2Fringe Benefits Notice .............................................................................. 1-12Genetic Predisposition ............................................................................... 5-2Glass Windows, Safety and Health ............................................................. 8-1Golf Caddie, Minors ............................................................................ 3-1, 3-2Golf Caddies, Unemployment ................................................................... 11-2Gratuities, Minimum Wage/Overtime ......................................................... 2-6Gratuities, Wage Payment .......................................................................... 1-6

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Index (iii)Revised 2/14

Hazard Communication Standard.............................................................. 6-2Health Insurance Continuation & Conversion Rights ............................... 16-6Hearing Loss ............................................................................................. 9-3Hearing Loss, Apportionment of Benefits ................................................... 9-3High Voltage Lines, Safety and Health........................................................ 8-1HIV/HBV, Advisory Panel on Infected Health Care Workers ...................... 16-5HIV-Positive Status .................................................................................... 5-3Home Farm, Minors ............................................................................ 3-1, 3-2Hours Worked, Definition .......................................................................... 2-6Human Rights Law .................................................................................... 5-1Income Executions .................................................................................... 1-4Independent Contractors, Unemployment ................................................ 11-1Information Security Breach .................................................................. 16-11Intentional Injury or Intoxication ............................................................... 9-2Joint Accounts, Unemployment ............................................................... 11-5Jury Duty ................................................................................................. 1-7Late Payment of Taxes, Unemployment .................................................... 11-3Leave For Blood Donation ........................................................................ 16-9Legal Activities, Off-the-Job, Exceptions Not Protected ............................. 14-5Legal Activities, Off-the-Job, Protected ............................................ 14-4, 14-5Lie Detectors............................................................................................ 16-5Lump-Sum Settlement, Workers’ Compensation......................................... 9-5Mandatory Retirement ............................................................................... 5-3Manual Worker, Definition ......................................................................... 1-1Meal Periods .............................................................................................. 4-2Meals, Rent and Lodging, Unemployment ................................................ 11-3Mercantile Establishments, Safety and Health ........................................... 8-1Military Spouse Leave ............................................................................ 16-13Military Status .......................................................................................... 5-1Mines, Safety and Health ........................................................................... 8-1Minimum Wage ......................................................................................... 2-5Minimum Wage, Non-Profit Institution Employees ..................................... 2-6Minors Age 14 And 15, Employment .......................................................... 3-1Minors Age 16 And 17, Employment .......................................................... 3-2Minors Under 14, Employment .................................................................. 3-1Misconduct, Unemployment ................................................................... 11-8New Hire Notice ....................................................................................... 1-10New Hire/Re-hire Reporting..................................................................... 1-12Newspaper Carrier Permits ......................................................................... 3-3Newspaper Carriers............................................................................. 3-1, 3-2Non-Profit Hospitals and Residential Care Centers, Grievances................. 12-7Non-Work Related Injury or Illness........................................................... 10-1Notice of Breach .................................................................................... 16-12Notice of Termination............................................................................... 1-12Nursing Mothers’ Rights ........................................................................ 16-14

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Index (iv)Revised 2/14

Occupational Disease................................................................................. 9-3Occupational Disease, Apportionment Benefits .......................................... 9-3Other Worker, Definition ............................................................................ 1-1Outdoor Work, Minors ........................................................................ 3-1, 3-2Outside Salesperson, Definition ................................................................. 2-2Overtime Pay ............................................................................................. 2-6Parental Leave ........................................................................................... 5-3Pay Stub Requirements .................................................. (see Wage Statement)Permanent Partial Disability, Definition ..................................................... 9-4Permanent Total Disability, Definition ....................................................... 9-4Personnel Files, Access ............................................................................ 16-8Physician Examinations, Safety and Health ............................................... 8-2Political Activities, Off-the-Job, Protected ................................................. 14-4Post-Employment Inquiries ........................................................................ 5-2Posting Requirements ............................................................................ 16-16Pre-Employment Physical Examinations .................................................... 5-3Preferred Provider Organization ................................................................. 9-7Pregnancy and Leave of Absence ................................................................ 5-2Pregnancy as a Disability ........................................................................... 5-2Pregnancy, Disability Benefits ................................................................. 10-1Professional Employee, Definition .............................................................. 2-2Professional Employer Organization (PEO) ............................................. 16-10Prohibited Audio and Video Recordings ................................................. 16-13Prohibited Occupations, Minors ................................................................. 3-3Psychological Stress Evaluator Examination ............................................ 16-5Psychological Stress Evaluator, Discrimination ........................................ 16-5Public Places, Safety and Health ................................................................ 8-1Quarries, Safety and Health ....................................................................... 8-1Railroad Worker, Definition ........................................................................ 1-1Real Estate Brokers, Unemployment ........................................................ 11-2Reasonable Accommodation....................................................................... 5-3Record of Employment Slip...................................................................... 11-4Record-Keeping, Disability ....................................................................... 10-5Record-Keeping, Employment of Minors .................................................... 3-4Record-Keeping, Human Rights Law .......................................................... 5-7Record-Keeping, Minimum Wage/Overtime ................................................ 2-8Record-Keeping, New Hire and Annual Notice ............................................ 1-9Record-Keeping, Payment of Wages .......................................................... 1-10Record-Keeping, Right-to-Know Law .......................................................... 6-3Record-Keeping, Safety and Health Law ..................................................... 8-3Record-Keeping, Security Guards ............................................................ 16-4Record-Keeping, Unemployment ............................................................ 11-11Record-Keeping, Wages ............................................................................ 1-10Record-Keeping, Work Hours ..................................................................... 4-4Record-Keeping, Workers’ Compensation ................................................. 9-16

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Index (v)Revised 2/14

Recreational Activities, Off-the-Job, Protected .......................................... 14-5Refusal of Employment, Unemployment ................................................... 11-9Religious Accommodation .......................................................................... 5-4Representation Election, State Labor Relations ............................... 12-4, 12-5Representation Hearings .......................................................................... 12-5Representation Petition............................................................................ 12-6Required Time Off ...................................................................................... 4-1Retaliation, Disability Benefits Law .......................................................... 10-2Retaliation, Human Rights Law ................................................................. 5-2Retaliation, Payment of Wages ................................................................... 1-8Retaliation, Right-to-Know Law.................................................................. 6-3Retaliation, Safety and Health ............................................................ 8-2, 8-3Retaliation, Workers’ Compensation Law.................................................... 9-8Right-to-Know Law .................................................................................... 6-1Right-to-Know Law, Coverage .................................................................... 6-1Right-to-Know Law, Educational Programs ......................................... 6-2, 6-3Right-to-Know Law, Obtaining Information ................................................ 6-2Right-to-Know Law, Preemption ................................................................. 6-1Right-to-Know Law, Retaliation.................................................................. 6-3Right-to-Know Law, Trade Secrets ............................................................. 6-3Safety and Health, Coverage ...................................................................... 8-1Safety and Health, General Duties ............................................................. 8-1Safety and Health, Preemption ................................................................... 8-1Sales Commission Plan Agreements ........................................................... 1-2Sanitary Code, Safety and Health .............................................................. 8-1Security Guards, Duties of Employers...................................................... 16-3Security Guards, Registration ......................................................... 16-1, 16-2Self-Insurance, Disability Benefits ........................................................... 10-3Severance, Unemployment ....................................................................... 11-8Sexual Harassment.................................................................................... 5-3Sexual Orientation .................................................................................... 5-1Shared Work Programs ............................................................................ 11-1Smoking, In the Workplace ...................................................................... 14-1Smoking, Off Workplace Premises ................................................... 14-1, 14-5Social Security Number, Restrictions on Use .......................................... 16-13Sorority, Minors ........................................................................................ 3-2State Employment Relations Board, Jurisdiction ............................ 12-1, 12-2State Employment Relations Board, Preemption ...................................... 12-1State Fund, Disability Benefits ................................................................ 10-3Street Trade Permit, Minors ....................................................................... 3-3Strikes and Lockouts, Unemployment ...................................................... 11-8Strikes, Non-Profit Hospitals and Residential Care Centers ...................... 12-7Student General Employment Certificate ............................................ 3-2, 3-3Student Learners ....................................................................................... 3-3Student Non-Factory Employment Certificate ..................................... 3-2, 3-3

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Index (vi)Revised 2/14

Sub-Minimum Wage .................................................................................. 2-6Switchboards, Safety and Health ............................................................... 8-1Temporary Partial Disability, Definition ..................................................... 9-4Temporary Total Disability, Definition........................................................ 9-4Termination Notice .................................................................................. 1-12Termination, Wage Payment....................................................................... 1-3Time Off (for Overtime Pay purposes) .................................................. 2-6, 2-7Tips, Minimum Wage/Overtime ................................................................. 2-6Tips, Wage Payment ................................................................................... 1-6Trainees, Minors........................................................................................ 3-3Transfer of Business, Unemployment ....................................................... 11-5Tunnels, Safety and Health........................................................................ 8-1Unemployment Benefits, Disqualification ................................................. 11-8Unemployment Benefits, Qualification ..................................................... 11-8Unemployment Insurance, Coverage ........................................................ 11-1Unemployment Insurance, Liable Employer ............................................. 11-2Unfair Labor Practice Charge ................................................................... 12-5Unfair Labor Practices, State Labor Relations Act ..................................... 12-3Union Representation, State Labor Relations Act ..................................... 12-4Unlawful Direct Inquiries ........................................................................... 5-2Unlawful Discriminatory Practices ............................................................. 5-2Unlawful Indirect Inquiries......................................................................... 5-2Voluntary Quit, Unemployment ............................................................... 11-8Voting Leave .......................................................................................... 16-10Wage Payment, Frequency ......................................................................... 1-2Wage Statement Contents ........................................................................ 1-11Wage Theft Prevention Act, Penalties ................................................... 1-8, 2-7Wage Theft Prevention Act, Record-keeping .............................................. 1-10Wages, Apprentice...................................................................................... 2-6Wages, Deduction ...................................................................................... 1-3Wages, Definition for Payment ................................................................... 1-1Wages, Differential in Pay Because of Sex ................................................... 1-6Wages, Direct Deposit .......................................................................... 1-2,1-3Wages, Equal Pay....................................................................................... 1-6Wages, Handicapped Worker ...................................................................... 2-6Wages, Kick Back....................................................................................... 1-6Wages, Learner .......................................................................................... 2-6Wages, Non-cash Allowances ...................................................................... 2-6WARN-NYS, Aggregation of Employment Losses ....................................... 15-3WARN-NYS, Exceptions to Notice Requirements ....................................... 15-2WARN-NYS, Mass Layoff .......................................................................... 15-1WARN-NYS, Notice Requirements ............................................................. 15-1WARN-NYS, Plant Closing ........................................................................ 15-1WARN-NYS, Relocation ............................................................................ 15-1Whistleblower Law, Coverage ..................................................................... 7-1

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Index (vii)Revised 2/14

Whistleblowing, Employee Rights .............................................................. 7-1Whistleblowing, Employer Correction......................................................... 7-2Whistleblowing, Employer Rights........................................................ 7-2, 7-3Whistleblowing, Exclusivity ....................................................................... 7-3Whistleblowing, Preemption ....................................................................... 7-3Whistleblowing, Public Body Definition...................................................... 7-2Whistleblowing, Public Health and Safety .................................................. 7-1Whistleblowing, Substantial and Specific ................................................... 7-2Whistleblowing, Supervisor Definition........................................................ 7-2Window Marking, Safety and Health .......................................................... 8-1Work Hours, Minors ........................................................................... 4-2, 4-3Workers’ Compensation, Benefit Reduction ................................................ 9-7Workers’ Compensation, Death Benefits ..................................................... 9-7Workers’ Compensation, Definition ............................................................ 9-1Workers’ Compensation, Employer Reimbursement.................................. 9-15Workers’ Compensation, Employer’s Report ............................................... 9-8Workers’ Compensation, Illegally Employed Minors .................................... 9-7Workers’ Compensation, Maximum ............................................................ 9-5Workers’ Compensation, Medical Expenses ................................................ 9-5Workers’ Compensation, Medical Specialist ................................................ 9-6Workers’ Compensation, Minimum ............................................................ 9-5Workers’ Compensation, Minimum Medical Fees ........................................ 9-6Workers’ Compensation, Notice of Injury .................................................... 9-8Workers’ Compensation, Off Duty Athletics ................................................ 9-2Workers’ Compensation, Payment of Benefits ............................................. 9-9Workers’ Compensation, Payment to Responsible Person for Minor ............ 9-7Workers’ Compensation, Physician Licensing ............................................. 9-6Workers’ Compensation, Rehabilitation...................................................... 9-5Workplace Display of the American Flag ................................................. 16-10Work-Related Injury or Illness, Definition ................................................... 9-2Yard Work, Minors .............................................................................. 3-1, 3-2

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